The Clean Water Rule: Definition of “Waters of the United States” (WOTUS) was published in the Federal Register on June 29, 2015 and became effective on August 28, 2015.  According to the EPA, the rule was developed “to respond to an urgent need to improve and simplify the process for identifying waters that are and are not protected under the Clean Water Act”. However, the rule was controversial from the beginning. In fact, EPA’s new Administrator, Scott Pruitt, sued the EPA over the rule as the Oklahoma attorney general. A total of thirteen states sued the EPA and, on October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit stayed the Clean Water Rule nationwide pending further action of the court. In response to this decision, EPA and the Army Corps of Engineers (USACE) resumed nationwide use of the agencies’ prior regulations defining the term “waters of the United States.”

On February 28, 2017, President Trump signed an executive order, Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, requiring the EPA Administrator to review the rule and rescind or revise, or publish for notice and comment proposed rules rescinding or revising the rule, as appropriate and consistent with law. In addition, the executive order states that the EPA Administrator shall consider interpreting the term “navigable waters” in a manner consistent with the opinion of Justice Antonin Scalia in the Rapanos v. United States decision. In his opinion, Justice Scalia concluded that Waters of the United States should include only relatively permanent, standing or continuously flowing bodies of water. The opinion also stated that a wetland would fall within the Corps’ jurisdiction only if there is a continuous surface water connection between it and a relatively permanent waterbody, making it difficult to determine where the waterbody ends and the wetland begins.

Representatives from farmer, rancher, and homebuilder groups attended the signing and applauded the executive order. The National Association of Home Builders called the executive order “an important first step toward reworking the flawed regulation and moving toward a more sensible WOTUS rule”. Meanwhile, the Sierra Club and other environmental groups are concerned that the order will “undo the scientifically based Clean Water Rule and create a lengthy process [that] will continue the confusion in what waters are protected by the Clean Water Act”. Therefore, with so many affected parties so strongly on either side of the issue, it will likely be impossible to craft a revised WOTUS rule that satisfies everyone. Even then, we can expect that legal challenges will follow.

The legal wrangling continues. The Supreme Court decided on April 3, 2017 that it will not pause a case concerning which court has proper jurisdiction over disputes under the Clean Water Rule. An earlier ruling by the 6th Circuit Court of Appeals in National Association of Manufacturers v. Department of Defense held that the 6th Circuit, which had consolidated cases filed in dozens of other federal circuit and district courts, would retain jurisdiction. The White House had asked the Supreme Court to hold off on the case while the EPA and USACE formally considered repealing the rule. The decision to continue the progress of the case does not impact the challenge to the contents of the WOTUS regulation, merely will determine whether the 6th Circuit has properly established jurisdiction. Undoubtedly, more will follow.

William Shane is an Environmental Engineer at Smith Management Group. William can be reached at williams@smithmanage.com.