By Douglas E. Kahle, Esq.[1] | Photo Credit: Tony Webster

On February 28, 2017, President Trump signed an executive order subtitled; “Restoring the rule of law, federalism, and economic growth by reviewing the ‘Waters of the United States’ rule”.  With the stroke of his pen, and with Scott Pruitt[2] sitting as his newly appointed Administrator of the United States Environment Protection Agency (“EPA”), President Trump has created the realistic expectation that many landowners may soon be free from the historically overreaching jurisdictional claims of the EPA and the Army Corps of Engineers (“Corps”).

The Clean Water Act (“CWA”) prohibits the discharge of pollutants, including dredged and fill material, into “navigable waters” without a federal permit and simply defines “navigable waters” as “waters of the United States”. [3] Although the Corps initially interpreted the CWA to mean it could only regulate traditional navigable waters, over the years it and the EPA have vastly expanded their claim of jurisdictional reach under the CWA.

In his executive order, President Trump directs the Administrator of the EPA and the Assistant Secretary of the Army (who commands the Corps) to review the extent of their claims of CWA jurisdiction, and to consider interpreting the CWA’s term “navigable waters” in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006). In the United States Supreme Court’s Rapanos case, Justice Scalia argued for a much more limited reach of federal jurisdiction than that which has been asserted by the EPA and the Corps.

In the Rapanos case Justice Scalia stated; “In applying the definition [waters of the United States] to ‘ephemeral streams’, ‘wet meadows,’ storm sewers and culverts, ‘directional sheet flow during storm events,’ drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term ‘waters of the United States’ beyond parody.”[4]  Justice Scalia joined the plurality decision in determining that the purpose of the CWA required limiting federal authority to “relatively permanent, standing or continuously flowing bodies of water” that are traditionally recognized as “streams, oceans, rivers and lakes” that are connected to traditional navigable waters.[5] Justice Scalia would also allow federal jurisdiction over wetlands abutting (meaning touching) these bodies of water if they contain a continuous surface water connection such that the wetland and the bordering water body are “indistinguishable” from each other.[6] Said differently, in Justice Scalia’s opinion, wetlands may be subject to federal jurisdiction only where the wetlands border navigable water such that one can’t tell where the wetlands end and the navigable water begins. With respect to asserting federal jurisdiction over wetlands, the Rapanos plurality of justices including Scalia stated; “the lower courts should determine . . . whether the wetlands in question are ‘adjacent’ to [covered waters] in the sense of possessing a continuous surface connection that creates the boundary-drawing problem we addressed”[7] in the earlier decision, United States v. Riverside Bayview Homes, Inc. 474 U.S. 121 (1985).

Justice Scalia expressed his view that the textual limitation of the CWA, its scope, is to be limited and gleaned from Congress’ use of the term “navigable waters”. Possibly most significantly, Justice Scalia underscored Congress’ recognition of states’ rights, as opposed to the federal government, to prevent and eliminate pollution and to regulate the development of their lands and water resources.[8]  

For the most part, the dispute over the jurisdictional reach of the CWA arises when the EPA or the Corps prevents a landowner from undertaking work in an area that has been determined to be “wetlands”[9]. Keeping with Justice Scalia’s writings, in order for the federal government to successfully assert jurisdiction over wetlands; (1) there must be a finding that an adjacent channel is a relatively permanent body of water connected to traditional interstate navigable waters, and (2) the wetlands must have a continuous surface connection with that water that makes it difficult to determine where the water ends and the wetlands begin.[10] Anyone who works in the field of environmental and wetlands consulting knows that the vast majority of lands considered to be wetlands by the EPA and the Corps would be exempt from federal jurisdiction under these guidelines.

The take away from President Trump’s February 28, 2017 executive order is that there is hope on the horizon that many hundreds of thousands of acres of otherwise perfectly developable and usable property, that was rendered worthless by the EPA and the Corps, may once again provide value to their owners.  With Mr. Pruitt’s staff of attorneys standing by to draft the new regulations since the day he was appointed as administrator of the EPA, it should not be a long wait for landowners to see regulatory relief from the crush of overreaching federal agencies purporting to act under the auspices of the CWA. The EPA and the Corps may initially resist a wholesale adoption and implementation of the new regulations; it may require landowners to initiate judicial action to order their compliance with the new regulations. But unlike years past when properties deemed to be wetlands by the Corps were effectively worthless, these properties may resume their position as valuable, developable assets.       

[1] Mr. Kahle is an attorney with the Virginia based law firm of Wolcott, Rivers, Gates, and has successfully represented landowners in litigation against the EPA, the Corps, and Virginia’s Department of Environmental Quality.

[2] While serving as Oklahoma’s Attorney general, Mr. Pruitt repeatedly sued the EPA, alleging jurisdictional overreaching.  

[3]  33 U.S.C. § 1362(7).

[4] Rapanos v. United States, 126 S. Ct. 2208, 2222 (2006)

[5] Id. at 2221 and 2227.

[6] Id. at 2234.

[7] Id., at 2235.

[8] 33 U.S.C. § 1251(b)

[9] At the heart of the problem is the Corp’s definition of a “wetland” to include land that is literally “dry” at the surface but that for a period of a few weeks a year has an underground, elevated water table such that if one digs a hole he will find moist soil a distance beneath the surface.

[10] Rapanos, 126 S. Ct. at 2227.