In an extraordinary action, President Donald Trump has issued an executive order calling for a reframing of federal wetlands regulation in a way that would in effect overturn a U.S. Supreme Court ruling and include policy considerations that extend far beyond those contained in the text of the Clean Water Act.
Among other things, the executive order calls for the Trump Administration to balance water quality against “minimizing regulatory uncertainty” and instructs federal agencies to interpret the Clean Water Act in a manner consistent with Justice Antonin Scalia’s plurality opinion in the 2006 case Rapanos v. United States.
Scalia’s opinion called for the Clean Water Act to be interpreted narrowly, requiring a federal wetlands permit only if the wetland has a “continuous surface connection” to a “relatively permanent, standing, or continuously flowing” body of water.
But Scalia’s opinion only got four votes. The deciding vote in the Rapanos case came from Justice Anthony Kennedy, who said a permit would be required “if the wetlands, either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as navigable.”
Ever since Rapanos, the Environmental Protection Agency has been flummoxed trying to interpret the case. Ironically, the “Waters of the United States” rule represented the Obama Administration’s attempt to eliminate the resulting uncertainty. Seeking to slipstream in between the Scalia and Kennedy opinions, the WOTUS rule does appear to bring marshes, peat bogs, vernal pools, and other small and sometimes disconnected wetlands into federal wetlands. The vernal pool aspect of the rule is especially important in California.
But the Trump executive order essentially instructs federal agencies, including EPA, to ignore Kennedy’s opinion. It also orders agencies to use a balancing test that goes far beyond the Clean Water Act’s language, which was reflected in Kennedy’s opinion.
The first paragraph of the executive order declares his administration’s “policy” on water quality, saying that it is in “the national interest” to keep the nation’s waters “free from pollution,” but also “promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution.”
Such a statement is remarkably far-reaching compared to the typical presidential executive order. The Clean Water Act itself calls on federal agencies “to restore and maintain the chemical, physical, and biological integrity of the Nation’s
waters” and that discharge of pollutants into “the nation’s waters” be eliminated. It is the definition of “the nation’s waters” that has been subject to constant debate since the Reagan Administration.
Implementation of the new rule was halted in late 2015 by the Sixth U.S. Circuit Court of Appeals, which issued a stay. The litigation was brought by several attorneys general, mostly in the Midwest and Plains states, including Oklahoma’s Scott Pruitt, who is President Trump’s new EPA administrator. The Sixth Circuit has now halted the litigation temporarily while the U.S. Supreme Court considers another case that poses the question of whether federal district or appellate courts have jurisdiction over Clean Water Act issues.