By Kristen Hildreth and Ben Husch
Fulfilling one of his major campaign promises, on Feb. 28, President Donald Trump issued an executive order to begin the process of reviewing, and possibly rescinding, the Environmental Protection Administration’s (EPA) and the U.S. Army Corps of Engineers (USACE) Clean Water Rule: Definition of Waters of the United States.
Finalized in June 2015, the rule, more commonly referred to as WOTUS, was designed by the EPA and USACE to define “waters of the United States,” as used in the Clean Water Act (CWA). The rule aims to determine the scope of federal authority to regulate such water, and when states, local governments and others must seek federal permits to develop land because it contains WOTUS.
The rule was issued following a U.S. Supreme Court ruling in the 2006 case Rapanos et ux., et al. v. United States, which challenged federal jurisdiction to regulate certain types of wetlands under the CWA. Although the Supreme Court issued a 4-1-4 decision in favor of Rapanos, the court was split on how to define the federal government’s jurisdiction.
The president’s executive order directs the EPA and USACE to consider interpreting “navigable waters … in a manner consistent with” Justice Antonin Scalia’s opinion rather than Anthony Kennedy’s. The EPA used Kennedy’s opinion in its basis for the rule, sparking legal challenges that argued the rule unconstitutionally expanded the CWA’s reach and misapplied Kennedy’s opinion from the 2006 case. Kennedy’s concurring opinion in the case stated that waters must have a "significant nexus" to actual navigable rivers and sea to qualify as protected under the CWA whereas Scalia’s plurality opinion argued the Clean Water Act strictly applies to “navigable waters,” and only applies to non-navigable waters if the waters are “relatively permanent, standing or flowing bodies of water,” such as streams, rivers, lakes and bodies of water forming geographical features.
Additionally, on Jan.13, the Supreme Court agreed to review a challenge to the regulation from 31 states. The court will resolve whether federal appellate, or district court judges have jurisdiction to review the regulation. Following this decision, which may not come until 2018, the appropriate court would then begin hearing the challenge to rule. The executive order instructs EPA and USACE to inform the U.S. attorney general of the pending review so they may act, as they deem appropriate, in the court (or courts).
It remains unclear how any such actions by the Attorney General could affect both the case before the Supreme Court and either the appellate or district court. However, the possible outcomes include the Attorney General asking the Sixth Circuit to voluntarily vacate its decision temporarily staying the regulations (issued in 2016) given that the new administration intends to change them. The Sixth Circuit is more likely to agree to this if none of the parties object although because a number of states and environmental groups have intervened in support of the current WOTUS regulations, they may object. Additionally, if the Sixth Circuit vacates the stay the practical effect is the current regulations would no longer be valid. Vacatur of the Sixth Circuit stay also would likely moot the Supreme Court challenge on jurisdiction. If the Sixth Circuit refuses (or isn’t asked) to vacate the Sixth Circuit decision regarding the stay, the Supreme Court jurisdiction litigation is likely to proceed indefinitely. Because defining WOTUS has been so difficult and contentious, almost no matter what new definition is proposed it too will be subject to litigation.
For any questions or further concerns regarding the executive order or the CWA, please contact NCSL staff Ben Husch, or Kristen Hildreth.
Ben Husch is a senior director with NCSL’s National Resources and Infrastructure Committee, and Kristen Hildreth is a policy associate with NCSL's National Resources and Infrastructure Committee. Lisa Soronen, executive director of the State and Local Legal Center, also contributed to this post.