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On Feb. 28, President Trump signed an executive order directing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) to rescind or revise the administrative rule issued by the Obama administration in 2015 that defines the terms 鈥渨aters of the United States鈥� as provided in the federal Clean Water Act (CWA). The definition of 鈥渨aters of the United States鈥� (WOTUS) does not of itself create regulatory water quality standards. Rather, the terms, regardless of how they are construed, determine which bodies of water across the U.S. are subject to federal water quality regulations under the CWA. Thus, the use or management of a water body will be subject to federal water quality regulations under the CWA only if it is of a character to fall within the definition of WOTUS.

The CWA provides that the EPA and the USACE shall have the authority to regulate all navigable waters within the United States. The CWA defines the term 鈥渘avigable waters鈥� as 鈥渨aters of the United States, including the territorial seas.鈥� However, pursuant to the U.S. Supreme Court鈥檚 1985 decision in United States v. Riverside Bayview Homes Inc., WOTUS are not strictly limited to waters that are actually navigable, but extend to wetlands that 鈥渁ctually abut鈥� traditionally navigable waters. The Riverside Bayview Homes decision would be the first of three separate decisions issued by the U.S. Supreme Court in its efforts to distinguish the limits of the EPA鈥檚 and the USACE鈥檚 ability to regulate water bodies. The most recent and relevant for purposes of considering the Trump administration鈥檚 executive order is the 2006 decision entered in Rapanos v. United States.

In Rapanos, in a plurality opinion requiring that the case be sent back down to the lower courts, the late Justice Antonin Scalia stated: 鈥� 鈥榳aters of the United States鈥� includes only those relatively permanent, standing or continuously flowing bodies of water 鈥榝orming geographic features鈥� that are described in ordinary parlance as streams, 鈥� oceans, rivers (and) lakes鈥� and, therefore, do not include 鈥渃hannels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.鈥�

Although in agreement that the case should be remanded to the lower courts, Justice Anthony Kennedy in a separate opinion took issue with Scalia as to the factors that determine when a body of water qualifies as WOTUS. Scalia argued that a jurisdictional water body must consist of 鈥減ermanent standing water or continuous flow, at least for a period of 鈥榮ome months鈥� 鈥� and should exclude 鈥渨etlands lacking a continuous surface connection to other jurisdictional waters.鈥� Kennedy disagreed, stating wetlands should be included as WOTUS if they 鈥渟ignificantly affect the chemical, physical and biological integrity of other covered waters more readily understood as 鈥渘avigable.鈥�

Not surprisingly, these two opposing approaches to defining WOTUS created only further uncertainty in the lower courts as they struggled to determine the reach of federal regulatory authority. However, the lower courts have generally followed Kennedy鈥檚 analysis, which has come to be known as the 鈥渟ignificant nexus鈥� test.

Given the continuing uncertainty, on May 27, 2015, the EPA and the USACE released a new rule attempting to define 鈥渨aters of the United States.鈥� It allegedly relied on Kennedy鈥檚 significant nexus test, but, according to many states and affected private and public stakeholder interests, expanded the types of water bodies over which the federal government assumed regulatory authority under the CWA. The 2015 rule has proven highly controversial as farming, forestry, small landowner, municipal, commercial and industrial interests alike feared the new rule would result in only more opportunities for federal regulation accompanied by increases in project approval costs and completion time. The final version of the 2015 rule was published in the Federal Register on June 29, 2015 and became effective on Aug. 28, 2015.

To prevent implementation, 31 states, together with other affected private and public stakeholders, filed complaints challenging the 2015 rule on constitutional grounds that it improperly expanded the reach of federal regulation under the CWA. One federal district court stayed implementation of the 2015 rule in 13 states pending completion of the case. However, a number of cases were also referred to be originally heard in the federal Sixth Circuit Court of Appeals, where a stay was issued for the nationwide 2015 rule. For those heard in the Sixth Circuit, an appellate three-judge panel ultimately determined the appellate court possessed authority to initially hear the challenges to the legality of the 2015 rule definition. Following the Sixth Circuit鈥檚 decision, and in consideration of the pending case in federal district court, on Jan. 13, 2017, the U.S. Supreme Court agreed to hear the issue of whether challenges to the 2015 rule should be heard in the federal district or appellate courts. It is possible that such a decision may not be issued until next year.

Section 3 of the executive order makes it clear the Trump administration will pursue a WOTUS definition 鈥渃onsistent鈥� with Scalia鈥檚 opinion in Rapanos v. United States. When the administration may issue a revised or new WOTUS rule is anybody鈥檚 guess. For the fate of the existing 2015 rule to be determined by the courts, that could take an even longer period of time as well, especially if the U.S. Supreme Court determines that only the federal district courts possess the initial authority to hear challenges to the 2015 rule.

On the other hand, with possibly as much as a year or more before the U.S. Supreme Court even issues a decision, the Trump administration may have time to 鈥渞evise or rescind鈥� the existing 2015 rule, a process apt to take an appreciable period of time as well. Further, regardless of how quickly the administration can act, there is every reason to believe that issuance of any revised or new rule will be met with as much opposition in the courts as the Obama administration鈥檚 2015 version. So, we may not see the courts define WOTUS any differently from the 鈥渟ignificant nexus鈥� test set forth in Rapanos for some time.

Peter Mohr is an environmental, water and natural resources lawyer at Jordan Ramis PC. Contact him at 503-598-7070 or [email protected].