The Clean Water Act, passed in 1972, allows the EPA and the Army Corp of Engineers to regulate many activities, including development and agriculture, to the extent these activities impact Waters of the United States. Such regulations include things like requiring permits to add fill material to wetlands in order to make these areas suitable for development. Over the years, the jurisdictional reach of the Clean Water Act and the regulations promulgated under it (through the definition of “Waters of the United States”) has been debated and litigated.
In an effort to clarify the term “Waters of the United States,” and eliminate the uncertainty that came with the application of previous, sometimes nebulous and discretionary, definitions, in 2015, the EPA issued a final definition of the term. The only problem was that the definition endorsed by the EPA, while clearer than previous interpretations of the term, was considered unduly broad by some, and an outright overreach of federal jurisdiction by others, primarily by those in the development industry, manufacturing, and agriculture. The EPA definition extended federal regulatory and permitting requirements to a wide range of bodies of water that have not traditionally been considered “Waters of the United States” by many people.
On February 28, 2017, President Trump issued an Executive Order directing the EPA and the Army Corp of Engineers to reexamine EPA’s definition of Waters of the United States under the Clean Water Act, with an eye toward balancing competing interests: preventing navigable waters from environmental pollutants on the one hand and promoting economic growth on the other hand. The President also cited reducing regulatory uncertainty and showing due regard for States’ rights as important factors in formulating national policy and a new definition under the Clean Water Act.
The President directed the EPA and the Army Corp to rescind or revise the definition, consistent with the requirements of the law, and in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006). In that decision, Justice Scalia endorsed a much narrower view of the term “navigable waters”, which in turn, narrowed the scope of the term “Waters of the United States” and the CWA’s reach.
Even under the Executive Order, it is likely that the revision of the definition will take many months, if not years, to accomplish, and it will almost certainly be challenged in Court. In the meanwhile, the Courts previously blocked the application of the 2015 definition, pending review of it by the Supreme Court. Accordingly, the pre-2015 definition continues to apply until either the Courts rule on the legality of the 2015 definition or the EPA and Army Corp issue a new definition under President Trump’s Executive Order.