The Waters of the United States Rule, commonly referred to as the WOTUS Rule, was the subject of an executive order by President Trump on Tuesday, February 28, 2017, directing that the rule be reviewed and revised or repealed. Although the Executive Order starts the process, its completion is expected to take at least a year or two given the formal administrative process required for repeal or replacement. This delay is of lesser consequence than might otherwise be the case because the rule was stayed by the Sixth Circuit Court of Appeals pending further action. Nevertheless, the repeal will be significant for project developers, such as solar projects and real estate developers, as well as for farmers and ranchers, mining companies and other energy companies. The executive order is also expected to be followed by a more aggressive approach by the Trump Administration to roll back the Obama Administration’s regulation on this issue.

The WOTUS Rule was finalized in May 2015 by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) providing a new, significantly expanded definition of “waters of the United States.” Although the Clean Water Act applies only to “navigable waters,” the Act does not define that term other than as “waters of the United States, including the territorial seas.” As such, the jurisdiction of the Clean Water Act only extends to that which the EPA and Corps consider “waters of the United States.” The WOTUS Rule, however, went well beyond any previous EPA-Corps regulation or guidance, as well as the interpretation of the term offered by Justice Kennedy in the Supreme Court decision Rapanos v. United States, upon which EPA and the Corps had relied in adopting the rule.

The executive order adopts a different approach, directing the federal agencies to consider applying the interpretation of “waters of the United States” advanced by Justice Scalia in Rapanos. In Rapanos, the Supreme Court considered whether four wetlands in Michigan, which lay near nonnavigable tributaries of traditional navigable waters, were “waters of the United States” as defined in the Clean Water Act. The Court split 4-1-4 on whether the Army Corps of Engineers could require the persons discharging into those wetlands to obtain a Clean Water Act permit before filling in the wetlands adjacent to a nonnavigable tributary. Justice Scalia, writing for four justices, asserted a practical, physical constraint on the definition, concluding that waters of the United States consist of “relatively permanent, standing or continuously flowing bodies of water” connected to traditional rivers or streams that are traditionally navigable, as well as wetlands with “a continuous surface connection to such water bodies.” Justice Scalia’s opinion conflicted with that of Justice Kennedy, who argued that wetlands and other jurisdictional areas only need share a “significant nexus” with navigable waterbodies to be covered by the Clean Water Act.

The WOTUS Rule, relying on Justice Kennedy’s plurality opinion, redefined and expanded the term “waters of the United States,” extending the lateral and upstream extent of federal jurisdiction well beyond traditional navigable waters and their tributaries to wetlands and other water features hundreds and potentially thousands of feet away from such major water bodies. The agencies’ basis for this conclusion was that impacts on those smaller or intermittent water bodies and water features will eventually reach and affect the larger bodies of water. This basis for asserting jurisdiction has been challenged broadly, including in Justice Scalia’s Rapanos opinion, which characterized EPA’s and the Corps’ position as a “Land is Waters” approach. Significantly, the WOTUS Rule not only extended Clean Water Act jurisdiction over many previously unregulated projects and activities on private land, but the resulting Clean Water Act permitting requirements also would trigger review by other federal agencies under the Endangered Species Act, the National Environmental Policy Act and the National Historic Preservation Act.

The executive order’s directed shift to Justice Scalia’s interpretation may considerably limit Clean Water Act jurisdiction and thereby limit which development projects and land use activities will be required to obtain a permit. However, even if the Administration adopts such an interpretation in a rulemaking, such an interpretation will not necessarily remain in place indefinitely, and it most certainly will be challenged by groups who believe even the current rule was not expansive enough. Justice Scalia’s opinion in Rapanos did not capture a majority of the Court, thus leaving the door open for future administrations to return to and again attempt to expand upon Justice Kennedy’s significant nexus interpretation. Further, given that the WOTUS Rule has been stayed, it is possible that the Trump Administration will ask the court to remand the rule back to the agencies for revision. Indeed, the executive order specifically contemplates that the Attorney General will “take such measures as he deems appropriate” when notifying the court of the pending repeal or revision of the rule. Following issuance of the executive order, EPA and the Corps promptly issued a notice of its intention to review and revise or rescind the WOTUS rule through a new rulemaking to provide greater clarity and regulatory certainty concerning the definition of “waters of the United States.”

As reflected in the agencies’ Notice, the executive order requires the EPA and Corps to review the WOTUS Rule and does not mandate its repeal. Yet, given the comments by the Administration that it intends to repeal the rule, it is almost certain that a complete overhaul of the rule that limits the scope of Clean Water Act jurisdiction will be the agencies’ focus in this rulemaking. In the meantime, there remains enough uncertainty regarding how the requirements of the Clean Water Act will be applied that companies and individuals whose activities may impact wetlands, rivers, streams, and other waterbodies should carefully consider the continued prospect of enforcement and litigation. Given the great uncertainty in this interim period, companies should consult with counsel to fully understand the potential legal repercussions of their activities that may impact nearby bodies of water.