On February 28, 2017, President Trump honored his campaign promise to enact policy with the intent of providing regulatory relief by issuing an Executive Order that requires the EPA and Army Corps of Engineers (Corps) to review the Clean Water Rule (Rule). There is no denying that regulators within the EPA and Corps have engaged in regulatory and jurisdictional scope creep for many years. The Clean Water Rule, which sought to more clearly define Waters of the US (WOTUS) legitimized the scope creep with the EPA conceding that the Rule would, on average, increase federal jurisdiction of WOTUS by 3-5%, bringing in over 1 million additional waters, primarily drainages, ephemeral creeks, dry arroyos and ditches redefined as tributaries.
The Executive Order directs the EPA and Corps to review the Rule in the context of developing a revised rule that protects WOTUS while minimizing regulatory uncertainty. More importantly, the Executive Order directs the EPA and Corps to review the Rule “in a manner consistent with the plurality opinion of Justice Scalia in the Rapanos v United States Supreme County case”. The agencies, in their interpretation of jurisdiction following Rapanos, have largely ignored the plurality opinion and instead have focused on the concurrence opinion offered by Justice Kennedy. There are major difference between the opinions. Justice Scalia wrote that “the Corps has stretched the term “waters of the United States” beyond parody” and strongly concluded that ephemeral streams, dry arroyos, man-made drainage ditches, and storm water systems are not WOTUS and subject to the Clean Water Act. Justice Kennedy wrote that features on the landscape that are man-made, not hydrologically linked, ephemeral, etc., could be jurisdictional if there was a “significant nexus” to a navigable WOTUS. The determination by regulators of what constitutes a “significant nexus” is so broad, unpredictable, and constantly evolving that its often abused to the point where everything is potentially jurisdictional.
With over 20 years experience applying federal protocols, regulations, and policy in the field to identify WOTUS and then seek federal Clean Water Act permits we can attest to the incredible frustration from the regulated public with regards to regulatory uncertainty and inconsistent interpretation of jurisdiction. While we applaud efforts to create a more reliable and predictable regulatory process, there must be a balance between the protection of resources and refining the definition of WOTUS. The definition of WOTUS through a rule-making process will take years to accomplish, so currently Senior Regulatory Biologist, Jody Gallaway is working to propose regulatory reforms that could be enacted much sooner resulting in significant regulatory relief.