March 6, 2017

"Waters of the United States" Rule Among the First on Trump’s Chopping Block

Holland & Knight Energy and Natural Resources Blog
Rafe Petersen

On Mar. 6, 2017, the Environmental Protection Agency (EPA) noticed its intent to review and rescind or revise the Clean Water Rule. See 82 Fed. Reg. 12532.

EPA's action is the first step towards implementing President Trump’s Feb. 28, 2017 Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule. In that Executive Order, President Trump directed the U.S. Army Corps of Engineers (Corps) and the U.S. Environmental Protection Agency (EPA) to begin the process of rescinding or revising the "waters of the United States" (WOTUS) rule ("Clean Water Rule: Definition of 'Waters of the United States,'" 80 Fed. Reg. 37054 (June 29, 2015)).

Perhaps one of the most controversial of the Obama Administration's environmental regulations, the WOTUS rule sets forth the scope of the agencies' authority to regulate wetlands, streams and a wide array of water bodies pursuant to the Clean Water Act. The WOTUS rule was viewed as a vast overreach of federal jurisdiction and was immediately challenged in multiple law suits by states and private interests. The cases were consolidated and the rule was stayed by the courts.

According to the Executive Order the WOTUS rule will be reviewed for consistency with the following policy: "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." The Executive Order further requires the agencies to notify the Attorney General of the pending review so that the AG may notify the courts of the review and presumably halt the litigation. According to the EPA, the agencies intend to immediately implement the Executive Order and publish a Notice of Proposed Rulemaking to rescind or revise the WOTUS rule.

Hinting of what is to come, the Executive Order states that the revised WOTUS rule will be written in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006). The Scalia opinion provides that "only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features' that are described in ordinary parlance as ‘streams, oceans, rivers and lakes,'" that are connected to navigable-in-fact waters, are subject to regulation under the Clean Water Act. His opinion specifically excludes "channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall." 

Any new rule will be subject to the required notice and comment procedures under the Administrative Procedure Act. Thus, the status quo of often wide variances of interpretation of what waters are regulated under the Clean Water Act will likely continue into the near future. However, those wishing to question the agencies' interpretation may be able to use the Scalia test in the interim. 

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