Gavel to Gavel: The WOTUS two-step
A source of consternation for many Oklahomans has been the U.S. Environmental Protection Agency's 2015 Clean Water Rule, commonly known as the WOTUS Rule.
WOTUS stands for Waters of the United States and is relevant in the context of the Clean Water Act. On June 27, the EPA released the much anticipated proposed first step of a two-step plan to replace the 2015 WOTUS Rule, thus beginning the regulatory dance.
President Donald Trump issued an executive order entitled, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule" directing the EPA and Army Corps of Engineers to review the 2015 WOTUS rule for its consistency with the stated policy of the Trump administration. That policy is to "ensure that the Nation's navigable waters are kept free from pollution, while... promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution." Step one is preserving the status quo while the EPA and Corps complete their review.
This first step is relatively innocuous because the status quo is the pre-2015 WOTUS rule regulations, which the EPA is currently enforcing due to a nationwide stay of the 2015 WOTUS Rule pending a judicial jurisdictional review by the U.S. Supreme Court during its October 2017 term. Step two of the rulemaking will be more contentious as it will focus on revising the regulatory definition of a "waters of the U.S."
An important piece of the EPA's second step will be the U.S. Supreme Court's decision in Rapanos v. United States, 547 U.S. 715 (2006). The court decided this case with a 4-1-4 plurality opinion. Justice Kennedy's concurring opinion (the "1") states that jurisdictional waters or wetlands are those that possess a "significant nexus" to a navigable water. This became the policy of the EPA and the Corps.
However, the Trump WOTUS rule is expected to follow the plurality opinion, written by the late Justice Scalia, which states that jurisdictional waters are relatively permanent bodies of water that have a surface connection to navigable waters.
Additionally, we can expect the rule to focus on retaining and perhaps increasing the states' role in preventing, reducing and eliminating water pollution.
Erin Potter Sullenger is an attorney in Crowe & Dunlevy's Energy, Environment & Natural Resources Practice Group.