On February 28, 2017 President Trump signed Executive Order 13778 ordering the federal EPA and Army Corps of Engineers to modify or rescind the Waters of the United States (WOTUS) Rule published in 80 Fed. Reg. 37054 (June 29, 2015). The WOTUS rule was crafted to clarify the scope of waters protected under the Clean Water Act (CWA) and confusion created by Supreme Court decisions in U.S. v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. United States.
The WOTUS Rule, which became effective on August 28, 2015 maintained the existing definitions of the waters of the United States employed by the Army Corps of Engineers, EPA, and state, local, and tribal agencies, but allowed for the possible increase of waters regulated by the Clean Water Act (jurisdictional waters). Specifically, the WOTUS rule permitted the regulatory agency to determine whether a water not jurisdictional by rule (tributaries and adjacent waters with a significant nexus to a navigable water, navigable waters, interstate waters, or territorial seas being jurisdictional by rule) was covered by the rule on a case by case basis.
In his new executive order, President Trump has requested that EPA and the Army Corps of Engineers craft a new rule or rescind the WOTUS rule consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006). Scalia’s opinion in that case differs little from the WOTUS rule. His opinion embraces the significant nexus test to an extent, however, it seems to state that certain intermittent waters such as ponds and ditches are not jurisdictional under the CWA, but still leaves that determination to the agency.
EPA is now tasked with rescinding the WOTUS rule or drafting a new WOTUS rule.