Wetlands in front of the Lincoln Memorial, 1917, before construction of the reflecting pool
On February 28, 2017, President Trump signed an executive order directing EPA to review the “Waters of the United States Rule” (the “WOTUS” Rule). Exec. Order No. 13778, 82 Fed. Reg. 12497 (Feb. 28, 2017). The order directed EPA and the Army Corps of Engineers (the “Agencies”) to “rescind or revise” the final WOTUS Rule promulgated by the Obama administration defining the jurisdictional scope of waters of the United States. See 80 Fed. Reg. 37054 (June 29, 2015); see also Vol. XLVIII, No. 2 of this Newsletter (describing the WOTUS Rule).
The executive order directed the Agencies to review the WOTUS Rule for consistency with the following policy statement: “It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” 82 Fed. Reg. 12497. The order further directed the Agencies to “consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).” This direction is in contrast to the current WOTUS rule, which largely adopts the test explained in Justice Kennedy’s concurrence in Rapanos.
On March 6, 2017, the Agencies announced that they will review and revise the WOTUS Rule accordingly. See 82 Fed. Reg. 12532. About one month later, on April 19, 2017, EPA held a “Federalism Consultation Meeting” and presented the Agencies’ approach to implementing the executive order. At that meeting, EPA explained that the Agencies are planning to implement the Executive Order in two steps. They first will take action to establish the “legal status quo [ex ante]” by “recodifying the regulation that was in place prior to issuance of the Clean Water Rule.” After restoring this status quo, EPA explained, the Agencies will then turn to proposing a new definition that comports with Justice Scalia’s opinion in Rapanos.
Restoration of “status quo”
The first step of the process was presented by EPA as “restoring the status quo” by recodifying the pre-Obama rules, which date to 1986. As of the writing of this article, the Agencies have submitted a proposal to rescind the rule to the White House Office of Information and Regulatory Affairs, which is in the process of meeting with stakeholders and other groups about the proposal.
It is important to recognize that the state of the law prior to the Obama administration’s WOTUS rule was far from settled, and that the pre-Obama definitions gave rise to considerable litigation over the scope of federal authority, including the Rapanos decision. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); Rapanos, 547 U.S. 715 (2006). The pre-Obama rule should be read in light of these cases, which interpret and limit the scope of federal jurisdiction.
Different options for the new WOTUS definition
In April, EPA explained several possible approaches to defining the scope of federal Clean Water Act jurisdiction consistent with Justice Scalia’s opinion in Rapanos. As was explained in that opinion, waters of the United States includes “relatively permanent, standing or continuously flowing bodies of water” and “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right.” Rapanos, 547 U.S. at 742. Under this framework, the Agencies are considering two categories of waters for classification in the new rule: “relatively permanent” waters and “wetlands with a continuous surface connection” to a jurisdictional water.
EPA presented three possible approaches for defining the universe of “relatively permanent” waters. First, the rule could include perennial waters plus streams with seasonal flow. EPA noted that under current practice, seasonal flow includes streams that flow roughly three or more months per year (although what constitutes a seasonal stream may vary by region). As a second option, EPA explained that the rule could include perennial waters plus streams “with another measure of flow.” This option would look to “appropriate, implementable metrics” to determine whether a seasonal or intermittent stream would qualify as “relatively permanent.” Metrics could include the frequency of flow, or the extent to which a stream intersects the water table. The third option presented would be to define “relatively permanent” waters as “perennial streams only.” In this case, only steams that carry flow throughout the year would qualify (with a limited exception for “extreme drought”). EPA also requested feedback on other ways it could formulate a definition for “relatively permanent” waters.
EPA also laid out three options with respect to what constitutes a wetland with a “continuous surface connection” to a jurisdictional water. The broadest definition would include waters with a surface connection, even if the connection is through a non-jurisdictional feature. It noted that current practice is to consider any wetland with a continuous surface connection to be jurisdictional, regardless of its distance from the jurisdictional water. The second approach is less inclusive and would include wetlands with “some degree of connectivity” as determined by the use of an “appropriate, implementable” metric such as distance. The third approach would be to include only wetlands that directly touch a jurisdictional water. EPA also asked for input on other approaches it might consider with respect to defining wetlands with a continuous surface connection.
The approaches laid out by EPA all appear to contemplate bright line approaches to determining jurisdiction, which stands in contrast to the Obama WOTUS rule as well as the earlier rules implementing the Clean Water Act. By relying on Justice Scalia’s opinion, current administration will sidestep the “significant nexus” determination that was to be made on a case-by-case basis for some waters under the Obama WOTUS rule. Instead, at least based on what has been presented so far, jurisdictional determinations under the new rule will be based exclusively on the factors discussed above, leaving much less room for case-by-case analysis.
The Agencies are continuing to do outreach with respect to the new rule. They sent a letter to state governors in May requesting input on what bodies of water should be subject to federal jurisdiction as “navigable waters.” The letter explains that the Agencies “want to clearly understand what definition will work best for your state as we develop a new federal definition of ‘waters of the U.S.’ consistent with the Scalia opinion.” Recognizing that the new rule is all but certain to reduce the scope of federal jurisdiction, the letter also asks states how they “might respond to a reduced scope of federal jurisdiction under the Clean Water Act.”