Written by: Ellen Essman, Law Fellow, and Peggy Hall, Asst. Professor, OSU Agricultural & Resource Law Program
The controversial “Waters of the United States” (WOTUS) Rule suffered two governmental assaults this week. We reported earlier this year about litigation over the Rule and a Senate Resolution urging withdrawal of the Rule. Actions this week in the House of Representatives, the White House and the EPA echo the Senate’s sentiments and push the Rule further towards its demise.
The House Resolution
In the U.S. House of Representatives, Ohio’s Representative Bob Gibbs introduced a resolution on February 27, 2017 stating that the Rule should be vacated. House Resolution 152 declares that the Clean Water Act (from which the Rule derives) is one of the nation’s most important laws whose success requires cooperative federalism, under which federal, state and local governments have a role in protecting water resources. Based upon the foundation of cooperative federalism, “Congress left to the States their traditional authority over land and water, including farmers’ field, non-navigable, wholly intrastate water (including puddles and ponds), and the allocation of water supplies.” The Resolution asserts that the latest revision to the Rule, however, claimed broad federal jurisdiction over water that encroaches upon the authority of the States and undermines the Clean Water Act’s historical exemptions from federal regulation. The Resolution also claims that the EPA failed to follow proper processes when issuing the Rule.
The Executive Order
President Trump’s executive order (EO) issued on February 28, 2017 calls for the EPA and the Army for Civil Works (“Civil Works”, a part of the Army Corps of Engineers) to “rescind or revise” the WOTUS Rule. It is important to note, however, that the EO does not abolish the Rule; it simply orders the two agencies to review the Rule and try to adapt it to the Trump administration’s policies. The EO includes a policy statement explaining that it is in the best interest of the United States to keep “navigable waters… free from pollution,” but there is also a strong interest in promoting economic growth, so any changes to the Rule must balance both of those interests. The EO also gives the Attorney General the discretion to communicate any potential changes to the WOTUS Rule to federal courts with pending WOTUS litigation.
The EO further directs the EPA and Civil Works, when revising or rescinding the WOTUS Rule, to construe “navigable waters” as Justice Scalia did in the Supreme Court case Rapanos v. U.S. Under the Clean Water Act, “navigable waters” are defined as “waters of the United States, including territorial seas.” This means that the terms “navigable waters” and “waters of the United States” are interchangeable. In Rapanos, Justice Scalia, who wrote the decision for a plurality of the Court, asserted that navigable waters/WOTUS cannot be “ordinarily dry channels through which water occasionally or intermittently flows.” Instead, they must be “relatively permanent, standing or flowing bodies of water,” or wetlands with a “continuous surface connection” to permanent water bodies. Scalia’s interpretation is at odds with the interpretation contained in the Obama administration’s WOTUS Rule.
Agency Response to the Executive Order
EPA Administrator Scott Pruitt and Civil Works acting Secretary Douglas Lamont didn’t waste any time responding to Trump’s EO. On the same day Trump signed the Order, the agencies filed a Notice of Intention to Review and Rescind or Revise the Clean Water Rule. In the notice, the agencies explain their intentions to follow the EO, review the Rule and consider adopting Justice Scalia’s interpretation of navigable waters. The agencies state that they will utilize new rulemaking to “provide greater clarity and regulatory certainty concerning the definition of ‘waters of the United States.’”
Refresher: What’s in the WOTUS Rule?
The Obama Administration’s WOTUS Rule was released in the Federal Register on June 29th, 2015, and went into effect on August 28th, 2015. According to the EPA and the Army Corps of Engineers at the time, the rule was meant to “clarify the scope of ‘waters of the United States’…protected under the Clean Water Act.” In particular, the Rule states that a number of bodies of water qualify as WOTUS, such as: “tributaries to interstate waters, waters adjacent to interstate waters, waters adjacent to tributaries of interstate waters, and other waters that have a significant nexus to interstate waters.” The Rule elaborates on the definition of “tributaries,” which are WOTUS if they flow “to a traditional navigable water, an interstate water, or the territorial seas,” regardless of whether the flow is year-round, seasonal, or due to precipitation. Tributaries flowing into navigable and interstate waters that have “a bed and banks,” as well as “an indicator of ordinary high water mark” qualify as WOTUS under the Rule. “Adjacent waters” means “all waters located in whole or in part within 100 feet of the ordinary high water mark” of WOTUS, as well as “all waters within the 100-year floodplain” of WOTUS. Numerous different kinds of water can be “adjacent,” such as “wetlands, ponds, lakes, oxbows,” and “impoundments.” More information about the WOTUS Rule is available here.