Splashing Around in Federal Wetlands Jurisdiction

March 30, 2017

On Tuesday, February 28, 2017, President Trump signed an executive order (Order) aimed at unwinding the rule defining “Waters of the United States,” 80 Fed. Reg. 37,054 (published June 29, 2015) (WOTUS Rule) under the Clean Water Act (CWA). Primarily, the Order instructs the Administrator of the Environmental Protection Agency (EPA) and the Assistant Secretary of the Army for Civil Works to rescind or revise the WOTUS Rule and to consider interpreting “navigable waters” in a way that conforms to former Supreme Court Justice Antonin Scalia’s opinion in the case of Rapanos v. United States. Shortly after, EPA and the Army Corps of Engineers (ACOE) published notices on their websites stating their intent to review and rescind or revise the WOTUS Rule consistent with the Order. The WOTUS Rule establishes the extent of the ACOE’s jurisdiction under its Clean Water Act wetland permitting program.

To fulfill the Order, the agencies have a tough road ahead of them. The recently adopted WOTUS Rule is now final (although its implementation was halted by a stay Order entered by the U.S. 6th Circuit Court of Appeals). Therefore, any repeal or revision of the Rule will be subject to the same level of scrutiny if challenged as the rule it would replace. A new round of rulemaking by the EPA and ACOE will be required, with the same procedures as were followed to promulgate the recently adopted WOTUS Rule. EPA and the ACOE will be required to examine all relevant data and give a reasoned explanation for a revised rule, including any reasons for disregarding facts or circumstances that gave rise to the previous WOTUS Rule.

If the agencies decide to simply repeal the WOTUS Rule, the extent of the ACOE’s jurisdiction over WOTUS reverts to the pre-WOTUS Rule, under which agencies established the reach of WOTUS relying on agency guidance documents that incorporate Justice Kennedy’s significant nexus test from the Supreme Court’s plurality decision in Rapanos. If the agencies instead try to alter the WOTUS definition so that it aligns with Justice Scalia’s narrower view of the CWA’s scope articulated in Rapanos, they will have to provide a reasoned explanation as to their departure from not just the WOTUS Rule, but also from the previous EPA and ACOE regulations and guidance documents. Whatever route is chosen, there are sure to be challenges to the resulting changes, all of which may take many years to resolve.

In January, the Supreme Court granted certiorari to settle a jurisdictional question as to what court has proper jurisdiction to hear the WOTUS Rule challenges. After the Trump administration’s executive order, the Department of Justice filed a motion with the Supreme Court to hold the briefing schedule for the jurisdictional challenge in abeyance pending the EPA and ACOE’s review of the WOTUS Rule.  On April 3, 2017, the Supreme Court denied the Department of Justice’s motion, signaling that the pending cases will proceed regardless of the executive order.

The Attorneys of Lewis, Longman & Walker are highly experienced in assisting landowner clients in navigating the maze of regulations implemented by EPA, the ACOE and state and local agencies, including the WOTUS Rule.  If you have questions about how these regulations may affect your property please contact Wayne E. Flowers at wflowers@llw-law.com or by calling 904-353-6410.