On Feb. 28, 2017, President Trump issued the executive order “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” Section 3 of the order provides:
Sec. 3. Definition of “Navigable Waters” in Future Rulemaking. In connection with the proposed rule described in section 2(a) of this order, the Administrator and Assistant Secretary shall 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).
Upon issuance of this executive order, many commentators claimed that it represented a reversal of the aggressive approach taken by the EPA and the Army Corps of Engineers in classifying remote wetlands and ponds as “navigable waters” that would subject them to the jurisdiction of the Clean Water Act. Justice Scalia’s opinion in Rapanos was and is known for its wit and clarity in addressing what the late justice considered a clear overstepping by the EPA and the Corps of their authority to classify virtually any body of water as subject to their permitting and other jurisdiction:
In applying the definition [of waters of the United States] to “ephemeral streams,” “wet meadows,” storm sewers and culverts, “directional sheet flow during storm events,” drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term “waters of the United States” beyond parody. The plain language of the statute simply does not authorize this “Land is Waters” approach to federal jurisdiction.
547 U.S. at 734 (emphasis added).
While Justice Scalia’s spanking of the Corps was applauded in most business and real estate development circles, the final resolution by the Rapanos court was a 4-1-4 decision, with Justice Kennedy’s “significant nexus” test becoming the tie-breaking analysis for determining whether a body of water is subject to federal jurisdiction:
“Absent more specific regulations . . . the Corps must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to nonnavigable tributaries.” 547 U.S. at 782 (Kennedy, J., concurring).
Justice Kennedy’s concurring opinion has been viewed as establishing the “test” established by the Supreme Court for determining when “waters of the United States” are present. Nonnavigable, isolated, intrastate waters (such as mudflats and certain ponds) and remote drains, ditches and streams with insubstantial flow were excluded by Justice Kennedy from federal jurisdiction. However, Justice Kennedy’s “substantial nexus” test remained the voice of the Supreme Court when evaluating other questionable water bodies.
Which leads us to President Trump’s Feb. 28, 2017, executive order and the question “does it even matter?” An executive order cannot change the Supreme Court’s interpretation of a federal statute, namely the Clean Water Act. The “substantial nexus” test in the concurring opinion of Justice Kennedy has been widely accepted as the appropriate test to apply in cases of questionable federal jurisdiction over water bodies — not Justice Scalia’s more bright-line test. Therefore, even if Justice Scalia’s position on the court is filled by a justice (Judge Neil Gorsuch) with a similar view on this issue, the 4-1-4 divide in court appears to remain, even if another “waters of the United States” case works its way to the Supreme Court. It appears that in the absence of a decision of the United States Supreme Court that it is changing its interpretation of the Clean Water Act in the Rapanos case, the executive order cannot affect the current application of Justice Kennedy’s “substantial nexus” test — unless, of course, the Supreme Court’s holdings in Chevron and Brand X are extended even further to permit deference to EPA’s interpretations, which is unlikely.