Originally published by Walter James.
On February 28, 2017, the White House issued the Executive Order (“EO”) entitled “Restoring the Rule of Law, Federalism, and Economic Growth by reviewing the “Waters of the United States” Rule.” The EO took aim at the 2015 Army Corps of Engineers’ rule (80 Fed. Reg. 37054 (June 29, 2015)) that published the “Waters of the United States” (“WOTUS”) rule that is the subject of the EO.
First, a little bit of history and context. The Federal Water Pollution Control Act was enacted in 1948 and has been amended several times since and in 1972 was amended again and became known as the Clean Water Act. The CWA regulates discharges to “navigable waters.” The navigable waters are defined as the “waters of the United States” (“WOTUS”). The first definition of WOTUS (regulations promulgated in 1975) defined WOTUS to include “navigable waters” as well as “all ‘freshwater wetlands’ that [are] adjacent to the other covered waters.” United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123-24 (1985). The jurisdictional issue is that while there is a general consensus that some non-navigable waters are within federal jurisdiction, long and heated debate has been ongoing over the extent of the scope of what “non-navigable” waters are covered by the term, “WOTUS.” The definition of “waters of the United States” is also important to other federal programs (CWA Wetland Permits, Oil/Hazardous Substance Release Requirements and CWA SPCCC Regulations).
Along comes the United States Supreme Court opinion in Rapanos v. United States, 547 U.S. 715, 729 (2006) which wrestled with the scope of federal jurisdiction over non-navigable waters. While SCOTUS found jurisdiction lacking, it gave no real guidance on what was necessary to establish jurisdiction. The Rapanos decision was a definite mixed bag. Justice Scalia authored the plurality opinion with a separate opinion joined by Justice Kennedy. Scalia wrote that jurisdiction existed only over “relatively permanent, standing or flowing bodies of water” and “wetlands with a continuous surface connection to” WOTUS. Kennedy attempted to establish a broader jurisdictional rule discussing a “significant nexus” to navigable waters. The USEPA and the Corps of Engineers, through issuing a series of guidance documents, as well as most Circuit Courts have followed and adopted the “significant nexus” test. The problem is now with the consistent application of the Rapanos decision and the “significant nexus” test. Enter the current WOTUS rule, which took a very broad view of federal jurisdiction. One position was that the WOTUS rule drastically expanded the number and types of waters subject to regulation; the countervailing position was that only a very small number of waters would be added under the WOTUS rule. The WOTUS rule was challenged and ultimately stayed by the Sixth Circuit in October 2015. Order of Stay, EPA v. Ohio, Nos. 15-3799/3822/3853/3887 (October 9, 2015). As a result, the USEPA and Corps of Engineers currently follow pre-WOTUS rule interpretations.
The EO will most likely result in a narrower approach to federal CWA jurisdiction. Under the EO, the WOTUS rule can be revised or rescinded and any future rulemaking must consider interpreting WOTUS consistent with Scalia’s plurality opinion in Rapanos of a narrower interpretation “relatively permanent/surface water connection.” The continuation of the WOTUS rule is unlikely.
But does that change the landscape? Possibly not. From a practical perspective, the pre-WOTUS rule will remain in effect until a new rule is proposed. And regardless of one’s view of the EO, efforts to roll back the WOTUS rule will raise a number of procedural and substantive issues.
It is also important to recognize that under the CWA, many states have been delegated authority under the CWA and many states have their own statutes that authorize environmental regulatory activities (and many of these states have key jurisdictional definitions that may in fact be broader than the WOTUS rule). For instance, in Texas, Section 26.001 of the Texas Water Code defines it as: “groundwater, percolating or otherwise, lakes, bays, ponds, impounding reservoirs, springs, rivers, streams, creeks, estuaries, marshes, inlets, canals, the Gulf of Mexico inside the territorial limits of the state, and all other bodies of surface water, natural or artificial, inland or coastal, fresh or salt, navigable or nonnavigable, and including the beds and banks of all watercourses and bodies of surface water, that are wholly or partially inside or bordering the state or inside the jurisdiction of the state.”
As a result, programs in Texas (and many other states) may not even be affected by a change in the definition of WOTUS.
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