With a flourish of his pen, on February 28 President Trump signed an Executive Order aimed at dismantling the ill-fated Waters of the United States (WOTUS) rule. The rule was the latest attempt by EPA and the Army Corps of Engineers to bring some clarity to the limits of federal authority under the Clean Water Act. Clarity in this area has been elusive, and though many were unhappy with the rule, no one benefits from the current state of confusion.
The uncertainty begins with the Clean Water Act, which Congress said applies to “navigable” waters and then helpfully defined navigable to mean “waters of the United States.” The agencies and the courts have struggled ever since to figure out when wetlands are jurisdictional. The courts have not helped. In Rapanos v. U. S. , a 5-4 majority of the Supreme Court found the Government had overreached, but could not agree as to why. Justice Scalia, writing for a plurality of the Court, would limit jurisdiction to “relatively permanent, standing or continuously flowing bodies of water,” excluding intermittent or ephemeral channels and most drainage ditches. In a concurring opinion, Justice Kennedy invoked a “significant nexus” test whereby jurisdiction should apply if a hydrologic connection between a wetland and a navigable water could be demonstrated. Later courts have tried to follow both tests, with mixed results.
Justice Scalia’s test is a lot easier to apply: If you can see the water or the land goes squish under your feet, there is jurisdiction. Justice Kennedy’s test requires a case-by-case review and exercise of professional judgment. The WOTUS rule focused more on the Kennedy test to indicate how the Government would make its jurisdictional determinations.
Without getting into detail that now is mostly moot, the rule generated about one million public comments and lots of litigation—17 District Court complaints and 23 petitions to various Circuit Courts of Appeal. It seemed certain that the Supreme Court would get another opportunity to declare the law of WOTUS.
No doubt the Court will get that chance, but in a drastically different context. The president’s Executive Order has no legal effect, other than to get the process started. The Obama Administration’s WOTUS rule was subject to years of notice and comment before adoption, and the Trump Administration’s revisions will have to go through the same process. No doubt they will be as controversial and will also be fiercely litigated. That will take a very long time to play out, and won’t likely be completed during a Trump first term.
In the meantime, property owners still would like to develop their property, and the Government still has to apply the law. The Trump Executive Order gives direction that a new WOTUS rule should follow the Scalia test, but that doesn’t reflect the way jurisdictional determinations are made today. Suffice it to say that the Kennedy significant nexus test will still be in play for the near-to-intermediate term, and a prudent developer will include a wetlands determination as a key part of the due diligence for the project.