FROM THE HILL
WOTUS QUESTIONS CONTINUE TO MUDDY THE WATER
O
Paul Mendelsohn, NALP Vice President of Government Affairs
ther than oxygen, it’s tough to argue that any resource is more essential to life than
water. In the United States, heat waves, record droughts and the demands of a growing popu- lation have all impacted water quantity, par- ticularly in the West. Water issues affect all of us. However, as our members well know, the landscape industry occupies a unique position where water is concerned in that regulations often impact our ability to provide services. One such proposal that holds significant potential for impact is the proposed Waters of the United States (WOTUS) rule to expand the Clean Water Act (CWA) beyond navigable waters.
WOTUS has been a source of controversy since its announcement. Almost before the ink was dry, the regulation was challenged by attorneys general from 13 different states. Their challenges quickly led to a nationwide injunc- tion, and the rule’s implementation has been tied up in litigation ever since. Throughout his campaign, candidate Donald Trump cited WOTUS as an example of egregious regulatory overreach, and in February, President Trump signed an Executive Order as a first step to undo the WOTUS rule. Problem solved, right? Well, not quite. As is often the case with the federal government, things can get complicat- ed.
Late last month, Environmental Protection Agency (EPA) Administrator Scott Pruitt an- nounced that the administration was formally rescinding the WOTUS rule. In making the announcement, Pruitt said that the proposed rule would be made using a two-step process. First, the proposed rule would recodify the statutory language that was in place prior to the WOTUS rule proposal. Second, the EPA and Army Corps of Engineers would begin a “re-evaluation and revision of the definition of “waters of the United States in accordance with the Executive Order.” That’s where things get a little tricky.
So what obstacles does the president face when it comes to WOTUS? In essence, the Trump administration will face the same challenges as the Obama administration did
30 THE LANDSCAPE PROFESSIONAL > JULY/AUGUST 2017
in interpreting a hazy 2006 court decision that provided the justification for WOTUS. The issue has its genesis with Rapanos v. United States, a case challenging federal jurisdiction to regulate isolated wetlands under the CWA. The case was appealed to the Supreme Court, where it ended in a 4-1-4 split decision. Late Justice Antonin Scalia wrote the court opinion for the conservative bloc, and former Justice John Paul Stevens led the dissenters in the liberal wing, with swing vote Justice Anthony Kennedy in the middle.
Kennedy opined that the federal govern- ment’s “jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and naviga- ble waters in the traditional sense.” Wetlands can be regulated, he said, if “either alone or in combination with similarly situated lands in the region, (they) significantly affect the chemi- cal, physical and biological integrity of other covered waters more readily understood as ‘navigable.’”
In the opinion of the Obama administration, there was enough common ground between Kennedy’s “significant nexus” test and the dissenting opinion of the four liberals on the court for EPA and the Army Corps of Engineers to use that test as the basis for the WOTUS rule. In 2015, citing the confusion created by Rapanos, the new regulation was issued based on the “significant nexus” interpretation offered by Kennedy.
But President Trump has made it clear that it’s the Scalia opinion that he wants to use as a template for the new rule. The executive order kicking off the WOTUS review says EPA and the Army Corps of Engineers “shall consider interpreting the term ‘navigable waters’
...in a manner consistent” with Scalia’s opinion. In his opinion, Scalia said CWA “confers juris- diction only over relatively permanent bodies of water” and wetlands that have a “continuous surface connection” to those waters. But real- istically there are difficulties in promulgating a rule that simply adopts the Scalia standard. A majority of justices did not agree with Scalia’s “navigable waters” test, and chances seem slim
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