Drain the Swamps: A Brief History of “Waters of the United States” and the Trump Administration’s Attempt at Defining the Term

Drain the Swamps: A Brief History of “Waters of the United States” and the Trump Administration’s Attempt at Defining the Term

By: Tim Stanis, Staff Contributor 

On February 28, President Trump issued an Executive Order directing the Environmental Protection Agency (EPA) to review the Clean Water Rule (CWR) promulgated during the Obama administration.[1]  Issued in 2015, the CWR aimed to clarify the jurisdictional reach of the Clean Water Act (CWA) by attempting to more precisely define the term “waters of the United States” (WOTUS).[2]  The CWR has been met with much controversy, as agricultural groups have claimed that farmers could lose ranch or farmland over the regulation,[3] while environmental groups have said the CWR is essential to safeguarding public drinking water and habitats for fish and wildlife.[4]

Passed in 1972, The Clean Water Act (CWA) set the goal of eliminating pollutant discharges into navigable waters by 1985.[5]   The CWA prohibits “the discharge of any pollutant” to navigable waters from any point source.[6]  The CWA further defines the term “navigable waters” to mean “the waters of the United States” (WOTUS).[7]

The appropriate breadth in interpreting WOTUS has proven quite difficult and has been widely litigated.[8]  Rapanos v. United States is the most recent Supreme Court case addressing the matter.[9]  In a 4-1-4 split decision, the court ruled that isolated wetlands did not fall within the scope of WOTUS.[10]  Unfortunately, the decision did not bring any clarity to the definition of WOTUS.  Under Scalia’s plurality opinion, WOTUS should only include waters that are “relatively permanent, standing, or continuously flowing bodies of water.”[11]  However, Kennedy’s concurring opinion took a broader approach, defining WOTUS as including a wetland or non-navigable body of water that bears a “significant nexus” to a traditional navigable waterway.[12]

To provide some clarity to the public after the Rapanos decision, the EPA and the Army Corps of Engineers released proposed guidance explaining how the agencies intended to interpret “waters of the United States.”[13]  The guidance stated that traditional navigable waters, non-navigable tributaries of traditional navigable waters, and wetlands that directly abut such tributaries are considered WOTUS.[14]  Additionally, the guidance noted that further fact-specific analysis could be performed on the body of water in question to satisfy the “significant nexus” test posited by Kennedy.[15]

In an attempt to further clarify the meaning of WOTUS in the aftermath of Rapanos, the EPA and the Army Corps of Engineers published the Clean Water Rule (CWR) in 2015.[16]  For example, the CWR states that the CWA includes waters adjacent to jurisdictional waters within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high-water mark.[17]  However, the CWR has never been implemented, as 32 states sued to prevent the regulations from taking effect.[18]  The CWR is currently stayed by the 6th U.S. Circuit Court of Appeals.[19]

With the dawn of the Trump administration, the days of the Clean Water Rule appear numbered.  The newly issued Executive Order states that the Administrator and the Assistant Secretary shall consider interpreting the term “navigable waters” in a manner that is consistent with Justice Scalia’s interpretation in Rapanos.[20]  However, implementing this narrower definition of WOTUS is expected to be a years-long administrative process accompanied by a significant amount of legislation.[21]  With no clear outcome in sight, the definition of the “waters of the United States” appears destined to remain murky for the foreseeable future.

 

 

[1] Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, Office of the Press Sec’y (Feb. 28, 2017), https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic.

[2] Clean Water Rule: Definition of ‘Waters of the United States,’ 80 Fed. Reg. 37054 (June 29, 2015).

[3] Jeff Daniels, Trump Executive Order Seeks to Roll Back Controversial Obama Water Rules, CNBC (Feb. 28, 2017), http://www.cnbc.com/2017/02/28/trump-executive-order-seeks-to-roll-back-controversial-obama-water-rule.html.

[4] Juliet Eilperin & Abby Phillip, Trump Directs Rollback of Obama-era Water Rule He Calls ‘Destructive and Horrible, Wash. Post (Feb. 28, 2017, 2:00 PM), https://www.washingtonpost.com/news/energy-environment/wp/2017/02/27/trump-to-direct-rollback-of-obama-era-water-rule-tuesday/?utm_term=.3bc9d7d5d4e1.

[5] Clean Water Act, §101, 33 U.S.C. § 1251(a)(1) (1972).

[6] Id. § 301(a).

[7] Id. § 502(7).

[8] See, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985)(holding that wetlands adjacent to navigable waters are included in the scope of “waters of the United States”); Solid Waste Agency of N. Cook County. v. United States Army Corps of Eng’rs, 531 U.S. 159 (2001) (holding that isolated waters, including isolated wetlands, do not fall within the scope of “waters of the United States”).

[9] Rapanos v. United States, 547 U.S. 715 (2006).

[10] Id.

[11] Id. at 732.

[12] Id. at 758.

[13] Robert V. Percival et al., Environmental Regulation: Law, Science, and Policy 692 (7th ed. 2013).

[14] Id. at 693.

[15] Id.

[16] Clean Water Rule: Definition of ‘Waters of the United States,’ 80 Fed. Reg. 37054 (June 29, 2015).

[17] Id. at 37085.

[18] Ronald Bailey, Trump, Navigable Waters, and the EPA’s WOTUS Regulations, Reason (Feb. 28, 2017, 3:30 pm), http://reason.com/blog/2017/02/28/trump-navigable-waters-and-the-epas-wotu.

[19] Id.

[20] Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule, Office of the Press Sec’y (Feb. 28, 2017), https://www.whitehouse.gov/the-press-office/2017/02/28/presidential-executive-order-restoring-rule-law-federalism-and-economic.

[21] Jill Colvin, Trump Orders Review of Obama Rule Protecting Small Streams, Associated Press (Feb. 28, 2017, 6:40 PM), http://abcnews.go.com/Politics/wireStory/trump-ordering-review-obama-rule-protecting-small-streams-45796849.

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