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Executive Order Issued on "Waters of the United States"

Client Alert

On February 28, 2017, President Trump signed Executive Order, “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule” (“Executive Order”).  The Executive Order requires that the United States Environmental Protection Agency (“EPA”) and the Army Corps of Engineers (“Corps”) publish for notice and comment a proposed rule rescinding or revising the “Clean Water Rule: Definition of ‘Waters of the United States,’” (the “WOTUS Rule”).  The WOTUS Rule was published on June 29, 2015 by the EPA and Corps with the purpose of defining “navigable waters,” a term used in the Clean Water Act. President Trump’s Executive Order urges the EPA and Corps to consider defining the term “navigable waters” as the late Justice Antonin Scalia defined it in Rapanos v. United States, 547 U.S. 715 (2006) (“Rapanos”). The definition of “navigable waters” is important because it impacts the EPA and Corps’ regulatory jurisdiction under the Clean Water Act.

 I.      The Debate Over the Definition of “Waters of the United States”

The Clean Water Act (CWA) prohibits the unauthorized discharge of pollutants into “navigable waters,” which is defined as “waters of the United States.” 33 U.S.C. §1362(7).  The CWA’s objective is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” including navigable waters or waters of the United States.  33 U.S.C. §1251.  The CWA does not define “waters of the United States.”  Therefore, the EPA and Corps have defined the phrase through regulations.  Over the years, the courts have placed limits on the agencies’ definition. 

A.    The Impact of Riverside Bayview Homes, Inc.

In 1985, the Supreme Court issued its opinion in United States v. Riverside Bayview Homes, Inc. 474 U.S. 121 (1985) (“Riveside Bayview Homes”), a case that challenged the Corps’ interpretation of the term “navigable waters.”  The Court held that the term “navigable waters” included more than just waters that would be deemed navigable in the “classical” sense. Id. at 133.  The Corps construed the term “navigable waters” to include wetlands that were “adjacent to” other jurisdictional waters. Id. at 124.  Ultimately, the Court gave deference to the Corps’ definition of navigable waters as water which “moves in hydrological cycles,” rather than “artificial lines.”  The Court stated it was reasonable for the Corps to include “adjacent wetlands”  within the meaning of the term “waters of the United States.” Id. at 133-135.

B.     The Impact of the Migratory Bird Rule and the SWANCC Case

After Riverside Bayview Homes, the EPA and Corps engaged in rulemaking wherein they interpreted the CWA to govern all waters used, or which may be used, by migratory birds crossing state lines.  In Solid Waste Agency of N. Cook Cty v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC”), the Court analyzed whether the CWA’s jurisdiction extended to an abandoned sand and gravel pit which contained water that had become habitat for migratory birds.  The Court rejected the Corps’ position that it had jurisdiction over the water. Id. at 192.  The Court reasoned Congress’ use of the phrase “navigable waters” had “at least the import of showing us what Congress had in mind for enacting the CWA; its traditional jurisdiction over waters that were or had been navigable in fact or which could reasonably be made so.”  Id. at 172.  The Court emphasized the pit at issue here was not “adjacent to” open waters and  lacked a “significant nexus” to traditionally navigable waters covered by the CWA.  Id. at 167.

C.    The Impact of Rapanos

In 2006, the Supreme Court revisited the term “navigable waters” in Rapanos.  There, the justices were not able to agree on one standard. Justice Scalia, joined by three other justices, authored an opinion defining waters of the United States as “relatively permanent, standing, or continuously flowing bodies of water.”  Id. at 739.  Wetlands were included only when they have a “continuous surface connection” to other waters of the United States.  Id. at 742.  Justice Kennedy, along with three other justices, filed an opinion holding the Corps should determine, on a case-by-case basis, whether the water possesses a “significant nexus”  to waters that are navigable in fact.  Id. at 782. Regarding wetlands, a significant nexus exists when the wetland, either alone or with similar properties, significantly impacts the chemical, physical, and biological integrity of a traditionally navigable waterbody.  Id. at 164.

 II.     The WOTUS Rule and President Trump’s Executive Order

The WOTUS Rule was the culmination of the EPA and Corps’ effort to clarify the law in the wake of SWANCC and Rapanos.  The final rule identifies three tiers of waters: (1)  categorically covered  (jurisdictional), (2) may be deemed covered on a case-by-case basis if they have a significant nexus with other jurisdictional waters, and (3) categorically excluded. 

President Trump’s Executive Order seeks to have the WOTUS Rule revised or repealed, suggesting agencies redefine the term “waters of the United States” using Justice Scalia’s test in Rapanos.  The definition will have a significant impact on the EPA and Corps’ regulatory jurisdiction. The definition in Rapanos is limited to “relatively permanent waters.”  Whereas, the WOTUS rule may include more waters, as it examines waters on a case-by-case basis.

It is important to note that the WOTUS rule cannot be rescinded or revised through Executive Order alone.  The EPA and Corps are required to provide notice and a comment period.  Thus, until the agencies act, the regulated community must follow existing regulations, case law, and agency guidance on “waters of the United States.” 

For further information, please contact Christine Carson from Aleshire & Wynder, LLP’s Water Practice Group at (949) 223-1170.

Disclaimer:  Aleshire & Wynder, LLP legal alerts are not intended as legal advice.  Additional facts or future developments may affect subjects contained herein.  Please seek legal advice before acting or relying upon any information in this communication.