President Trump signed an executive order on February 28, 2017, to roll back the waters of the United States (WOTUS) rule that the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (Corps) promulgated in 2016. The Order is entitled, “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” It instructs EPA and the Corps to begin the process of a rule-making to withdraw the WOTUS rule, id. at § 2(a), and to take appropriate actions in the courts where the rule is in litigation. Id. § 2(c).
The Order raises a number of interesting issues. First, it instructs EPA and the Corps to “consider” adopting the Scalia test from Rapanos v. United States, 547 U.S. 715 (2006). Order § 3. Scalia opined in Rapanos that, “the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] . . . oceans, rivers, [and] lakes.’. . . . The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall. . .” 547 U.S. at 739.
Because Rapanos was a split decision (4–1–4), there is no controlling opinion. The circuit courts, applying the Marks analysis, have concluded that Kennedy’s lone concurring opinion, which focused on the significant-nexus test, is the controlling standard from the case. (A couple of circuits have allowed Kennedy’s or Scalia’s opinion to be used to establish jurisdiction.) All of the circuit courts and almost all of the district courts have rejected the argument that Scalia’s test should be adopted as the sole jurisdictional test. The Supreme Court has denied certiorari numerous times since Rapanos on WOTUS issues, so we have no clarification from the Court on how to interpret the decision.
It is clear why the administration has chosen Scalia’s test—it is more restrictive of jurisdiction than the Kennedy test, which EPA and the Corps adopted in the WOTUS rule. Under the Scalia test, most headwater systems—especially in the arid West—would not be protected by the Clean Water Act (CWA) because most headwater systems are ephemeral or intermittent and are therefore not “relatively permanent waters.” Headwater systems comprise a large part of the nation’s tributary system. In places like Arizona even the main channels are dry most of the year and, therefore, may not meet the Scalia test for jurisdiction. The Scalia test would likely also remove many of the nations’ wetlands from protection.
What is less clear is whether a new rule adopting the Scalia test would survive the almost-certain challenges by states and environmental groups. The government used the significant-nexus test in the WOTUS rule because that is the standard the courts have interpreted Rapanos to require. Assuming the lower courts are correct that Kennedy (or Kennedy plus Scalia) is the correct standard to apply, it is hard to see how a new rule that relies solely on the more-restrictive Scalia test can survive challenge. (Ironically, the Regulatory Accountability Act of 2017 the House of Representatives passed on January 17, 2017, which would deprive the courts of the ability to give Chevron deference to agency interpretations, may make it easier to challenge a new rule adopting the Scalia standard.)
It is also important to remember that the validity of the WOTUS rule is being actively litigated in the Sixth Circuit (the 11th Circuit and district court cases are on hold pending the Sixth Circuit decision). The Obama administration filed its merits brief just before Trump took the oath of office and that brief defended the WOTUS rule. Attorney General Jeff Sessions could move to withdraw the brief, but the 21 states and environmental groups that intervened to defend the rule would soldier on. Attorney General Sessions could also file a motion with the Sixth Circuit asking for permission to take a voluntary remand of the Rule, thereby short-circuiting judicial review. But the intervening states and environmental groups that support EPA’s current position would likely object to a remand. The Sixth Circuit may nevertheless grant the motion, but not necessarily. Remember, the Sixth Circuit sided with EPA when it first heard Rapanos, and it recently ruled largely in EPA’s favor on the interveners’ motion to supplement the record in the WOTUS litigation.
If the Sixth Circuit were to uphold the rule, EPA and the Corps would then have to withdraw the rule in order to prevent it from going into effect. If the Sixth Circuit remands the rule, then the government would have stronger grounds to promulgate a new rule consistent with the Court’s opinion. Alternatively, if the Sixth Circuit remands the rule, EPA and the Corps would not be obligated to re-promulgate a new version, and could instead rely on the Bush-era jurisdictional guidance that has been in effect since 2008. If the Trump administration thinks it has a winner in the Sixth Circuit, it might choose to wait for a decision.
If the current administration attempts to withdraw the rule, the path may not be an easy one. EPA and the Corps will have to argue around the existing record to issue a new rule or to repeal the current rule. The record includes the voluminous review of wetlands and stream science that concludes, among other things, that headwater systems are connected to and effect downstream waters. See 80 Fed. Reg. 2100 (Jan. 15, 2015) (EPA Office of Research and Development, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence”). The Obama administration used that study to support a finding of significant nexus to assert broader CWA jurisdiction in the WOTUS rule. The new administration will be faced with the challenge of articulating a rationale for withdrawing or amending the current rule that does not ignore substantial evidence in the record and thereby run afoul of the Administrative Procedure Act’s arbitrary and capricious standard.
A final interesting question is what effect the current rule’s withdrawal might have on the pending Supreme Court review of the Sixth Circuit’s 2016 holding that it has exclusive jurisdiction under CWA section 509 to review the challenges to the rule. See In re Clean Water Rule, 817 F.3d 261 (6th Cir. 2016) (6th Cir. 2015), cert. granted, No. 16-299 (Jan. 31, 2017). If the rule is withdrawn, the SCOTUS appeal may be moot. The question is whether the rule can be rolled back quickly enough to moot the case (unlikely). On April 3, 2017, the Court denied the Trump administration’s motion to delay the case, signaling that the Justices intend to take up the case immediately. If the Supreme Court reverses, finding that the Sixth Circuit did not have jurisdiction to hear the case, the Sixth Circuit’s stay of the rule will be lifted, putting the rule into effect outside of the states that were plaintiffs in the North Dakota district court case. This will force EPA to immediately start rulemaking to withdraw the rule.