On Thursday, July 27, 2017, the United States Environmental Protection Agency ("EPA") and the Army Corps of Engineers ("Corps") published the latest iteration in trying to define what are "Waters of the United States." What is considered a Water of the United States is a threshold question for determining whether a waterbody or wetland is subject to federal jurisdiction under the Clean Water Act and whether the federal government can regulate activities affecting them under what is commonly known as "Section 404." As demonstrated by the fact that this question has been before the United States Supreme Court three times since 1985 and has been on course for its fourth visit, the extent to which the federal government can control activities on private property based on its hydrologic condition has been the subject of extensive dispute across the nation. This jurisdictional definition affects how landowners, developers, farmers, the extractive industries and others may utilize their property under the Clean Water Act.
The extent of Clean Water Act jurisdiction has been problematic since passage of the Clean Water Act in 1970 when Congress asserted jurisdiction over "navigable waters," which were subsequently defined very generally as the "Waters of the United States," therefore sowing the seeds of uncertainty from the beginning. The regulatory agencies and the courts have been trying to refine the definition ever since. In order to address the uncertainty and define the outer boundaries of Clean Water Act jurisdiction, on February 28, 2017, President Trump issued an Executive Order entitled, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule." In the Order, the President directed the EPA and the Corps to review the previous Administration's rule defining jurisdictional waters considering a policy that it is in the national interest to not only ensure the nation's navigable waters are kept free from pollution but that the agencies also consider promoting economic growth, minimize regulatory uncertainty, and show due regard for the roles of Congress and the states under the Constitution.
The July 27, 2017 Notice (FR Vol. 82, No. 143) initiates the first step in a broad process intended to review and revise the definition of Waters of the United States consistent with the Executive Order. The public and regulated community have 30 days to comment on the proposals. The first step is to essentially nullify the previous Administration's definition, which has been stayed in the 6th Circuit Court of Appeals following a challenge by 31 states and numerous other parties. Along with rescinding the prior Administration's 2015 Clean Water Rule and maintaining the pre-2015 definition, the Executive Order also directs EPA and the Corps to consider interpreting the term "navigable waters" in a manner consistent with the late Justice Scalia's opinion in Rapanos v. The United States, 547 U.S. 715 (2006). Justice Scalia interpreted the term Waters of the United States as covering "relatively permanent, standing, or continuously flowing bodies of water that are connected to traditional navigable waters." It also included wetlands with a "continuous surface connection" to such water bodies. Utilizing Justice Scalia's definition would represent a departure from the plurality opinion in Rapanos, written by Justice Kennedy, which concluded that the appropriate test for the scope of jurisdictional waters is whether a water or wetland possesses a "significant nexus" to waters that are or were navigable in fact or that could reasonably be so made." This definition requires more technical, scientific analysis of the site conditions. The Rapanos decision, with two tests trying to serve the same purpose in defining jurisdictional waters and wetlands, therefore created a further blurring of the boundaries of regulatory power and further uncertainty across America.
One thing that is clear is despite the Rapanos opinion, being able to rely on any given definition or set of facts in managing one's properties where there are hydrologic features is rife with uncertainty. President Trump's Executive Order is intended to require the agencies to clarify and provide certainty to the regulated community. Nevertheless, just as hydrologic and related ecosystems are complicated, defining the nature and extent of governmental regulatory control over them will continue to be just as complicated.