What will become of WOTUS under the Trump Administration?

On February 28, 2017, President Donald Trump issued an executive order directing the Administrator of the Environmental Protection Agency (“EPA”) and the Assistant Secretary of the Army for Civil Works to review the “Waters of the United States” definition (“WOTUS Rule”) issued in 2015 by EPA and the Corps of Engineers (“Corps”) pursuant to the Clean Water Act (“CWA”), and to publish a proposed rule rescinding or revising the WOTUS Rule. The President directed the Administrator and the Assistant Secretary to consider, in their development of the proposed rule, interpreting the CWA’s definition of “navigable waters” in a manner “consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”

In his concurring opinion in Rapanos, Chief Justice Roberts chastised EPA and the Corps for having failed to undertake the very regulatory development process now ordered by President Trump. Following the Court’s decision in Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC), the agencies had initiated a rulemaking to consider the impact of that decision, but the rulemaking failed. As the Chief Justice put it in Rapanos:

Rather than refining its view of its authority in light of our decision in SWANCC, and providing guidance meriting deference under our generous standards, the Corps chose to adhere to its essentially boundless view of the scope of its power. The upshot today is another defeat for the agency.

547 U.S. at 758. To the Chief Justice, that was regrettable: “Given the broad, somewhat ambiguous, but nonetheless clearly limiting terms Congress employed in the Clean Water Act, the Corps, and the EPA would have enjoyed plenty of room to operate in developing some notion of an outer bound to the reach of their authority.” Id.

President Trump apparently believes there is still “plenty of room,” afforded by the deference courts show to agencies’ interpretations of ambiguous statutory language. His direction to consider the views of Justice Scalia suggests that President Trump hopes to see EPA and the Corps propose a WOTUS definition that is far more certain in its application and confining in its reach than the hydra-headed, case-by-case formulation the agencies have employed following the disjointed decision in Rapanos.

Justice Scalia had a lot to say in Rapanos and, as usual, he said it bluntly and colorfully. At its core, the Scalia formulation of a WOTUS definition centers on two elements. First, “waters of the United States” must actually be “waters,” as that term is commonly understood. To Justice Scalia, this includes “rivers, streams, and other hydrographic features more conventionally identifiable as ‘waters’.” He would include intermittent as well as perennial streams. Second, the WOTUS definition should include only those wetlands that have a continuous surface connection to jurisdictional waters; close proximity will not do. These two requirements leave no room for other features that would be included by other justices, especially Justice Kennedy: ephemeral streams (or gullies, ditches, and other depressions that occasionally convey precipitation runoff); so-called “adjacent” wetlands or waters that are merely neighboring to jurisdictional waters; or waters (alone or in combination with other waters) for which an agency might find a nebulous “significant nexus” to jurisdictional waters based upon ecological linkage, or other non-hydrologic factors.

The upcoming rulemaking will draw extensive participation by interests on all sides of the issue. Perhaps, in a few years’ time, we will then see whether the Chief Justice’s prediction of “generous leeway” under Chevron step two, Id., will be enough to sustain the Trump Administration’s WOTUS definition.