The Ongoing Struggle To Repeal WOTUS

On September 12, U.S. Environmental Protection Agency Administrator Andrew Wheeler and Department of the Army Assistant Secretary for Civil Works R.D. James announced that the two agencies were repealing a 2015 rule that impermissibly expanded the definition of “waters of the United States” (WOTUS) under the Clean Water Act.

This repeal is the most recent of many steps in the long attempt by the Trump administration to fulfill the campaign promise by Donald Trump to undo the Obama WOTUS rule. All of these steps have been challenged, just as the rule itself was.

The latest repeal, when formally published in the Federal Register, will not take effect for 60 days.

A year ago, the administration tried to promulgate a rule that suspended the Obama WOTUS rule. That move prompted litigation, with the result that the 2015 Obama WOTUS rule currently applies (although suspended) to 22 states, while the pre-Obama regulatory regime applies in the remaining 28.

With this repeal, the agencies will try to set the clock back to the pre-2015 regulations in all states. Several states have already announced that they will challenge the current repeal in court.

If the repeal is enjoined before it takes effect, either nationwide or in specific states, then legal challenges to the 2015 regulation pending in those states would continue.

The background to the fight over WOTUS goes back far beyond the election of President Obama. It hinges over the meaning of “navigable waters” in the 1973 Clean Water Act. A lot of the ongoing confusion is due to the refusal of the Supreme Court, in several courts cases, to issue a definitive ruling on what waters are or are not regulated by the 1973 Clean Water Act (CWA).

Trump had ordered the EPA to promulgate a new “waters of the U.S.” definition based on Supreme Court Justice Scalia’s plurality opinion in the 2006 case, Rapanos v. United States, a split 4-4-1 decision. In his concurring opinion, Chief Justice Roberts wrote that it was “unfortunate” that the Court failed to reach a majority and criticized the Corps for refusing to publish guidance on the scope of its regulatory power.

Scalia noted that the CWA itself regulated “navigable” waters of the United States. Yet the qualification “navigable” had been neglected as regulations expanded.

“The enforcement proceedings against Mr. Rapanos,” Scalia wrote, “are a small part of the immense expansion of federal regulations of land use that has occurred under the Clean Water Act—without any change in the governing statues—during the past five presidential administrations.”

“For a century prior to the CWA,” Scalia continued, “we [i.e., the Supreme Court] had interpreted the phrase ‘navigable waters of the United States” in the Act’s predecessors to refer to interstate waters that are ‘navigable in fact’ or readily susceptible of being rendered so.” But the Corps, he said, taking advantage of some ambiguous court rulings had kept on expanding the scope of its regulations—by adding waters used by migrating birds, for example, or temporary streams that left debris—whether “navigable” or not.

Kennedy’s opinion in Rapanos that any regulated waters had to have a “significant nexus” or connection to genuinely navigable waters was considered the ruling interpretation by subsequent lower court rulings. But it added to the muddle and left the door open for conflicting interpretations.

Into that wide-open door walked the Obama administration. In Rapanos, Scalia had complained that “the entire land area of the United States lies in some drainage basin, containing water ephemerally where the rain falls. Any plot of land containing such a channel may potentially be regulated as a ‘water of the United States.’”

The Obama White House said, in effect, “That’s right—and we’re going to regulate it all.” It had the Corps of Engineers and the EPA craft the WOTUS rule in an effort directed by the White House’s Council of Environmental Quality. In internal documents later leaked to a senator and publicized, Corps officials complained that the redefinition effort lacked scientific justification and that the Corps was being shouldered aside by political appointees seeking a predetermined outcome.

Against those who charged that it, not Congress, was impermissibly making new law, the White House responded that it was only defining the ambiguous term “waters of the United States”—even though that “definition” took up 74 pages of small print. Obama’s WOTUS rule placed the drinking water of about 117 million people, or a third of the country, under EPA jurisdiction. It came under wide criticism by farm, trade and manufacturing groups even before it was officially promulgated, and was immediately challenged by multiple lawsuits.

The Trump administration’s efforts are not the only legal front against the WOTUS rule. On August 19, Judge Lisa Wood of the Southern District of Georgia ruled that the 2015 WOTUS rule “extends the agencies’ delegated authority beyond the limits of the CWA, and thus is not a permissible construction of the phrase ‘waters of the United States’ within the statute, and that the agencies’ promulgation of the WOTUS rule violates the [Administrative Procedure Act’s] requirements.” Her ruling blocking the 2015 rule covers Georgia and nine other states.

In response to Wood’s ruling, Georgia Attorney General Chris Carr said, “For more than four years, Georgia has led a multi-state coalition in the fight against the 2015 WOTUS Rule, a clear example of federal overreach that infringed on the States’ traditional role as primary regulators of land and water resources within their borders. We are proud to have fought for this relief, and we look forward to reforms that will permanently relieve farmers and landowners of the unnecessary burdens that the 2015 WOTUS Rule created.”

Georgia Agriculture Commissioner Gary Black said, “Four years ago, federal regulators tried to sell us a bill of goods with this wretched rule. The court has now rightfully replied back ‘going, going, gone’.”