Posted on August 8, 2017 by Rick Glick
The Trump Administration has begun rulemaking to undo the controversial rule defining “waters of the United States” or WOTUS. In the July 27 Federal Register, EPA and the Army Corps of Engineers jointly announced that it is proposing a two-step process. The first would be to rescind the 2015 WOTUS rule, and the second would replace it with something aligned with the Administration’s thinking. As reported here, on February 28, 2017, President Trump issued an executive order directing the agencies to change direction.
The Clean Water Act confers federal jurisdiction over “navigable” waters, which are defined as “waters of the United States.” The agencies, courts and property owners have since struggled to elucidate that vague definition, particularly in the context of wetlands. A divided Supreme Court, in Rapanos v. U. S., offered competing definitions. Justice Scalia, writing for a plurality of the Court, would require running water, whereas Justice Kennedy in a concurring opinion, looked to whether a “significant nexus” exists between the waters or wetlands at issue and a navigable waterway.
The Obama Administration’s WOTUS rule attempted to bring clarity to the scope of federal jurisdiction, with an emphasis on the Kennedy approach. Under President Trump’s executive order, the new rule is to follow Justice Scalia’s view of WOTUS.
During the interim between step one (rescission) and step two (replace), we will have to muddle along as before. The Federal Register notice states:
The agencies would apply the definition of “waters of the United States” as it is currently being implemented, that is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice.
Simply stated, that means continuing uncertainty. It will probably take some years before a new replacement rule can be developed under the deliberate process required by the Administrative Procedures Act. If the reaction to the Obama WOTUS rule is any guide, the replacement rule will face many legal challenges, which could also take years to resolve, probably at the Supreme Court. Thus, it is unlikely that there will be binding policy change during the first term of the Trump Administration.
In the meantime, it is useful to remember that the states are free to adopt their own definitions of jurisdictional wetlands, which many have done or in the process of doing. States with strong environmental protection traditions—such as Oregon, California and Washington State—can be expected to assert jurisdiction, perhaps where the federal government does not.