On February 28th, President Trump announced that he would repeal the “Waters of the United States Rule” (WOTUS Rule) issued by the Obama Administration. The President commented that the WOTUS Rule “sort of has a nice name. But everything else about it is bad.” The administration’s executive order and accompanying notice from the EPA and U.S. Army Corps of Engineers (the Corps) lay out how the WOTUS Rule is likely to be rescinded and re-written. (See the WSJ’s commentary)
The WOTUS Rule is a legal consequence of the U.S. Supreme Court’s 2006 Rapanos decision. In Rapanos, the U.S. Supreme Court attempted to interpret the meaning of “Waters of the United States” under the Clean Water Act (CWA) and directed Congress or the Executive Branch to create clearer guidance. In 2015, the EPA and Corps published the WOTUS Rule, which they fashioned from a broad interpretation of Justice Kennedy’s “significant nexus” test from his concurring opinion in Rapanos.
Many commentators found that the WOTUS Rule created barriers, uncertainty, and large civil and criminal consequences in agriculture and development. Subsequently, many trade groups and states sued to block implementation of the WOTUS Rule. The WOTUS Rule’s “Texas Coastal Prairie Pothole” (TCP) provision in particular, which applied almost exclusively to the Greater Houston Region, appears particularly difficult to understand and implement. The West Houston Association, as part of the Texas Alliance for Responsible Growth, Environment, and Transportation (TARGET), filed suit to stop the application and enforcement of the TCP provision. In the summer of 2016, all WOTUS Rule cases were consolidated into the U.S. 6th Circuit Court of Appeals. In October 2016, the 6th Circuit blocked the entire WOTUS Rule because petitioners made a convincing argument that the EPA and the Corps erred on the WOTUS Rule in terms of substance and procedure.
The Trump Administration’s executive order directs the EPA to rewrite the WOTUS rule to incorporate the “surface water connection” test from Justice Scalia’s plurality opinion in the Rapanos case. Justice Scalia argued that the term “navigable Waters of the United States” in CWA required a “continuous surface water connection” in order for the Corps to apply CWA’s 404 permitting requirements. This means that prairie potholes, for example, would not be considered Waters of the United States.