In the latest chapter of the seemingly never-ending controversy over the Clean Water Act’s reach, on February 28, 2017, President Trump signed an executive order directing the U.S. Environmental Protection Agency and the U.S. Army Corp of Engineers to rescind or revise the Obama administration’s 2015 Clean Water Rule. The executive order and subsequent agency action signal that the agencies will work on a new rule that significantly narrows the scope of Clean Water Act jurisdiction from the current stayed rule.

Background

The Clean Water Act provides federal jurisdiction over “navigable waters,” which it rather unhelpfully defines to mean “waters of the United States” without any further elaboration. This definition is critically important because it determines which water bodies are subject to federal permitting requirements and which waters are beyond federal authority. The absence of a statutory definition has bedeviled the agencies and courts for years, with the U.S. Supreme Court addressing the issue on three occasions beginning in 1985. Most recently, in 2006, the Court issued a fractured decision in Rapanos v. United States, 547 U.S. 715 (2006), about the scope of “waters of the United States.” Justice Scalia, writing for the plurality, stated that the Clean Water Act should only cover “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, and “wetlands with a continuous surface connection to” those waters. Id. at 738. Justice Kennedy authored a concurring opinion in which he asserted that the act should additionally apply to those streams and wetlands that have a “significant nexus” to a navigable water. Subsequent to the fractured Rapanos opinion, there has been uncertainty amongst the lower courts about which jurisdictional test controlled. The agencies and most courts have generally opted to apply Justice Kennedy’s more expansive “significant nexus” test. 

During the Obama administration, the Environmental Protection Agency and the Army Corps of Engineers jointly published the Clean Water Rule on May 27, 2015. The controversial rule relied almost exclusively on Justice Kennedy’s “significant nexus” test from Rapanos to broadly define the scope of “waters of the United States,” ignoring the Court’s hints about the limits of legislative power under the commerce clause. The validity of the rule was immediately challenged in a variety of district courts, with  the U.S. Court of Appeals for the Sixth Circuit ultimately asserting the authority to consolidate and stay all of the district court cases. Currently, the U.S. Supreme Court is deciding whether the Sixth Circuit exceeded its authority, in which case the validity of the rule will be contested in a variety of district courts in several circuits.

New Executive Order

The executive order emphasizes the Trump administration’s dual focus on ensuring “the Nation’s navigable waters are kept free from pollution” while simultaneously “promoting economic growth, minimizing regulatory uncertainty and showing due regard for the roles of Congress and the States.” Accordingly, the order directs EPA and the Corps to: (1) rescind or revise the 2015 Clean Water Rule; (2) revise regulatory actions, including orders, rules, guidelines and policies, implementing and enforcing the rule; and (3) inform the attorney general of the pending review. Further, the order directs the agencies to look to Justice Scalia’s decision in Rapanos to determine how to interpret the term “waters of the United States.” 

Subsequent Agency Action

Stating that “it is important that stakeholders and the public at large have certainty as to how the CWA applies to their activities,” EPA and the Corps issued formal notice of their intention “to review and rescind or revise the rule” on March 1, 2017. The agencies indicated they would interpret the rule in a manner consistent with Justice Scalia’s opinion in Rapanos. 

Implications of the Executive Order

The 2015 Clean Water Rule as currently written will not survive. The executive order and subsequent agency action demonstrate that a significant shift in the scope of the Clean Water Act’s reach is likely. After initially interpreting “waters of the United States” to mean only waters that are navigable in fact, since 1975, EPA and the Corps have adopted a very broad interpretation of “waters of the United States” covering any water body the use, degradation or destruction of which could affect interstate commerce. This approach to interpreting the term was squarely rejected by Justice Scalia in Rapanos. Relying on Justice Scalia’s plurality opinion in Rapanos as the basis for a revised rule should greatly narrow the reach of the Clean Water Act. 

If the fate of the 2015 Clean Water Rule is any indication, any new rule will likely be subject to prolonged litigation, and the saga over what constitutes a “water of the United States” will continue. Environmental groups would likely argue that any rule based on Justice Scalia’s opinion in Rapanos is inconsistent with the CWA. Further, environmental groups may raise questions about how the agencies can justify limiting jurisdiction in light of the EPA report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence, which purported to provide the scientific basis for expanding the scope of the Clean Water Act in the 2015 Clean Water Rule.

Until the new rule is finalized, there will remain a great deal of uncertainty surrounding the scope of the Clean Water Act. It is unclear whether the agencies will continue to assert jurisdiction based on Justice Kennedy’s significant nexus test or determine jurisdiction using Justice Scalia’s narrower test. Therefore, landowners, developers, local communities and regulators will continue to struggle to ascertain whether or not the Clean Water Act applies to certain projects. 

© 2017 Perkins Coie LLP