On February 28, 2017, President Donald J. Trump signed an Executive Order directing the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) to review the Obama Administration’s Clean Water Rule, known as the WOTUS rule, which stands for Waters of the United States. Under the Clean Water Act (CWA), a person must acquire a permit to dredge and fill within “waters of the United States,” which includes wetlands. President Trump’s Executive Order directs the EPA and the Corps to consider interpreting the term “waters of the United States” as the late Justice Antonin Scalia did in the United States Supreme Court’s plurality opinion Rapanos v. United States, 547 U.S. 751 (2006) (Rapanos). There, Justice Scalia interpreted the CWA to include jurisdiction over more permanent water bodies and wetlands that have a continuous surface water connection to those more permanent water bodies. In contrast, the Obama Administration’s formulation of the WOTUS rule adopted Justice Anthony Kennedy’s interpretation from Rapanos, which defined the CWA’s jurisdiction to include water bodies and wetlands that have a “significant nexus” with those water bodies. The current WOTUS rule was challenged in court and is currently subject to a stay while the Supreme Court considers a different jurisdictional issue. The Trump Administration is motivated to replace the current WOTUS rule before the end of 2017 because once the Supreme Court decides the jurisdictional issue, it could call into question the stay and potentially cause the current WOTUS rule to go into effect.
The EPA and the Corps announced their plan to revise the WOTUS rule in two steps. First, the EPA will develop a rule to withdraw the current WOTUS rule and recodify the 1986 rule. Second, the EPA will propose a new WOTUS rule that is consistent with Justice Scalia’s opinion in Rapanos. On April 26, 2017, the Senate Environment and Public Works Committee held a hearing to review the technical, scientific, and legal basis for the current WOTUS rule. Retired Corps Major General John Peabody testified that the Corps’ advice had not been adequately incorporated into the creation of the current WOTUS rule, and noted that several Corps memos had been sent to the EPA regarding criticism of the legal and scientific basis for the rule. Specifically, the current WOTUS rule sets a specific distance that a wetland can be from a navigable waterway to be considered a “water of the United States.” Major General Peabody questioned whether a specific distance could survive a challenge in court because it places an arbitrary restriction on the Corps’ jurisdiction. However, the former EPA Deputy Administrator for Water, Ken Kopocis, testified that the Corps’ criticism of the WOTUS rule came very late in the process, and therefore, the rule could not be rewritten to include the Corps’ suggestions.
Although the revision of the WOTUS rule is imminent, it may be difficult to revise the rule quickly. A federal agency’s action can be overturned if it is found to be arbitrary or capricious. Therefore, a new WOTUS rule could run into legal trouble if the EPA and Corps do not thoughtfully consider the current scientific consensus and any new developments that could influence their decision making. An additional wrinkle in this process is that other federal courts have agreed that Justice Kennedy’s interpretation of the WOTUS rule is the controlling opinion, so a new WOTUS rule that interprets the jurisdiction according to Justice Scalia’s interpretation will be ripe for a lengthy court battle that could end in yet another Supreme Court opinion on the issue.
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