On Tuesday, June 27, the Trump administration announced its withdrawal of the “Waters of the United States” (“WOTUS”) Rule, which called for a dramatic and unprecedented expansion of the federal government’s permitting jurisdiction under the Clean Water Act. The WOTUS Rule was published in June 2015 by the Obama administration, but opponents, including dozens of states and industry groups, have argued in legal challenges that the measure effectively gives the U.S. Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) carte blanche to regulate all manner of land use activities, even those occurring miles away from an actual navigable water. In February, President Donald Trump signed an executive order that directed EPA and the Corps to propose a new rule.
Even before the rule, EPA and the Corps relied on the so-called Rapanos guidance, named after the fractured Supreme Court case where Justice Scalia, writing for four members of the Court, said that the federal government could regulate purported wetland only if there was an actual, surface connection between the wetland and a navigable water. Justice Kennedy, writing only for himself, said that all that is needed for federal jurisdiction is a “significant nexus” to a navigable waterway. But the term “significant nexus” is undefined, and EPA and the Corps interpreted the phrase extremely broadly when issuing permits under Section 404 of the Clean Water Act.
While the Trump administration’s revocation of the WOTUS rule will likely win plaudits from states, industry groups, and private land owners, abandoning the Rapanos guidance and adopting Justice Scalia’s opinion from that case will be a crucial next step. On Tuesday EPA said that “the agencies will conduct a separate notice and comment rulemaking that will consider developing a new definition of ‘waters of the United States’ taking into consideration the principles that Justice Scalia outlined in the Rapanos plurality opinion.” Stay tuned.