May 31, 2017

Waters of the United States Rule Update

From: The National Law Review

Article By Anna Claire Skinner, Carolyn M. Brown | Dinsmore & Shohl LLP

One of the first environmental measures the Trump administration took was issuing Executive Order 13778 directing the Environmental Protection Agency (EPA) to review and either rescind or revise the 2015 Clean Water Rule: Definition of “Waters of the United States” (WOTUS Rule). The WOTUS Rule was promulgated under the Clean Water Act (CWA), which defines the scope of CWA jurisdiction as “navigable waters of the United States.” The scope of “navigable waters of the United States” has been hotly debated in several court cases since the CWA was enacted. The WOTUS Rule sought to define which rivers, streams, lakes and marshes fell under the definition of “navigable waters of the United States.” See 80 Fed. Reg. 37054 (June 19, 2015). The WOTUS Rule took the approach of Justice Anthony Kennedy’s concurring opinion in Rapanos v. United States that navigable waters include any water body that has a “significant nexus” to navigable rivers and seas, including through biological or chemical connections. See 547 U.S. 715, 759 (2006).

Executive Order 13778 directs the administrator of the EPA and the secretary of the Army for Civil Works to review the WOTUS Rule and consider interpreting the term “navigable waters” in a manner “consistent with Justice Scalia’s opinion” in Rapanos v. United States. Justice Scalia’s definition of “navigable waters” is much narrower than Justice Kennedy’s definition; it only includes waters that contain “a relatively permanent flow” or that possess “a continuous surface connection” to waters with a relatively permanent flow. See Rapanos, 547 U.S. at 757.

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