That “bright line” for determining what waters are and are not covered by the Clean Water Act has been muddied once again. In keeping with a campaign promise, on February 28, 2017, President Trump issued his Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule. This Executive Order begins the process of unraveling the 2015 “Waters of the United States” rule (now referred to as the Clean Water Rule). Among other things, within the Executive Order, the president gives very clear directions as to what he expects to happen during the review and rescission or revision of the Clean Water Rule.
Stating that, “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 instructs the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) to review the Clean Water Rule for consistency with this “national interest” and, based on that review, “publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with law.” It also instructs the EPA and the Corps to promptly notify the attorney general of the United States that this review and revision will be taking place, so that the attorney general can, in turn, inform any court that may be handling pending litigation related to the Clean Water Rule.
Perhaps the most instructive part of the Executive Order is the direction it gives EPA with respect to the “Definition of ‘Navigable Waters’ in Future Rulemaking.” Section 3 of the Order directs the two 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). As explained in our earlier Alerts on the Clean Water Rule (What Constitutes Waters of the United States? The Next Round in The Debate Has Started and When is a Water a “Water of the U.S.”?), the Clean Water Rule gave equal weight to the solo concurring opinion of Justice Kennedy and the four-person opinion written by the late Justice Scalia. Specifically, Justice Kennedy’s concurring opinion extended jurisdiction to waters that have a “significant nexus to waters that are navigable in fact.”
Eliminating this balance, the Executive Order directs EPA to ignore, or at least de-emphasize, Justice Kennedy’s “significant nexus” portion of the Rapanos decision, and instead focus primarily on the much more restrictive definition set out in Justice Scalia’s opinion:
…the Act’s use of the traditional phrase “navigable waters” further confirms that the CWA confers jurisdiction only over relatively permanent bodies of water.... [it is plain] that § 1362(7) does not refer to water in general,… [but] more narrowly to water “[a]s found in streams,” “oceans, rivers, [and] lakes….” All of these terms connote relatively permanent bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows. …The phrase “the waters of the United States” includes 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. . . .” The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. The Corps’ expansive interpretation of that phrase is thus not “based on a permissible construction of the statute.”
Barely had the ink dried on this Executive Order when EPA, on February 28, posted on its web site a “Notice of Intention to Review and Rescind or Revise the Clean Water Rule,” which should also appear in the Federal Register in the near future.
While rescission is an option, it is more likely that the agencies will propose to revise the Clean Water Rule to include a much narrower definition. However, given the Clean Water Rule’s litigious history and the likelihood that EPA’s and the Corps’ budgets over the next four years will devote few (if any) dollars to its revision, it may be several years before we see a finalized Clean Water Rule. At the same time, however, it is not likely that we will see EPA and the Corps simply fall back on the pre-2015 version of the Clean Water Rule, as that version also took into account Justice Kennedy’s “significant nexus” test. Instead, we believe that it is more likely that EPA and the Corps will revert to case-by-case decisions and use Justice Scalia’s language as the basis for these decisions and eventually, the revised rule. Once finalized, the revised rule inevitably will be challenged by environmental groups and some states claiming, in part, that Justice’s Kennedy’s findings related to waters having a “significant nexus” to traditional navigable waters cannot be ignored. In the end, this means years of uncertainty ahead for developers and regulators.