By Tim Featherston*
President Trump’s appointment of Scott Pruitt, a long-time legal adversary of the EPA, to head the agency was seen as a clear sign of the administration’s intentions to roll back the environmental regulation put in place under the Obama Administration. The first target appears to be the Obama Administration’s interpretation of the definition of the “Waters of the United States” (WOTUS) as provided by the Clean Water Act of 1972. The WOTUS rule has long been a thorn in the side of presidents. Administrations have always struggled to promulgate a rule that both pleases their constituents. The new administration may find that it is much easier to “kill” the rule than it will be to find a functional alternative that pleases the interests of its supporters.
The issues with finding an acceptable rule to define the WOTUS stem from original statute’s definition that provided for the scope of the federal government’s enforcement power under the law. The Clean Air Act authorized the United States Secretary of the Army and the Army Corps of Engineers to issue permits for the discharge of pollutants into “navigable waters” and create penalties for those who do so without a permit. The act then goes on to define “navigable waters” as “the waters of the United States.” Congress has attempted on eight separate occasions to amend the act to provide a more clear definition of the term but has failed to pass a version that would be agreeable. Thus, without any further guidance from Congress, it has been left to executive and judicial branches to find a satisfactory definition of the term.
The battle over how to define WOTUS has been waged in the courts for the past 40 years, the most recent of these, and the current controlling precedent, came in 2006 with the Supreme Court decision in Rapanos v. United States. At the time of the decision, the Army Corps of Engineers interpreted WOTUS to apply expansively, beyond “navigable waters” including: “tributaries” and “wetlands adjacent” to navigable waters when they are “bordering, contiguous, or neighboring” such waters.  In a split 4-1-4 decision, providing three separate rationales and interpretations, the court vacated these rules as it found them to broad an interpretation. Justice Scalia bemoaned how the WOTUS definition had been used to assert “jurisdiction over virtually any parcel of land … through which rainwater or drainage” occasionally flows. The four conservative justices (Scalia, Roberts, Alito, and Thomas) held that the “only plausible” interpretation of the term includes “relatively permanent, standing or continuously flowing bodies of water,” which did not include wetlands adjacent to navigable waters.
Justice Kennedy’s concurrence, however, provided a new test that courts would use when deciding what qualified as WOTUS. Kennedy held that the federal jurisdiction over wetlands “depends on the existence of a significant nexus” between the wetlands and “navigable waters in the traditional sense. While this “significant nexus” test was created for the purpose of providing some administrable definition of the term “navigable,” it would only serve to make the interpretation of the statute more difficult.
The main issue with Justice Kennedy’s “significant nexus” test is that it attaches traditional legal categories and terminology to a problem that requires “scientific determination.” The test served only to make the EPA and the Army Corps of Engineers job even more difficult, giving them several layers of arbitrary legal categories that now must be applied to the scientific world.
This test has proven difficult to apply, and each administration has had a different approach to its application. The rule under the Bush Administration was designed to fit formal legal categories requiring consideration of factors like proximate cause on a case by case basis in order to determine the presence of a “significant nexus.” The Obama Administration rule, by contrast, attempted create some legal bright lines to better administer the “significant nexus” test and avoid the uncertainty of case-by-case analysis. The rule provides simple definitions and creates distinct categories for the various bodies of water that it believes qualifies as WOTUS in order to create a more clear and predictable system. It also has the effect of expanding the definition of WOTUS and was viewed by many members of industry as politically motivated.
It is currently unclear what the Trump Administration wants to do besides repeal the Obama Administration’s rule. It may be difficult for him to form a coalition around the issue. As unpopular as the Obama Administration’s rule has been with certain subsets of the population, there is no desire to go back to the case-by-case analysis of the Bush era. In his confirmation hearing, Scott Pruitt indicated that the Trump Administration’s intention is to keep the bright lines provided by the Obama Administration but role them back and limit federal jurisdiction.
It is unlikely, however, that this rule or any other rule that the administration chooses to promulgate will satisfy anyone. The WOTUS rule requires the executive branch to balance arbitrary legal concepts, like federal jurisdiction, with the natural science of an interconnected water system. It is unlikely that this or any administration will ever be able to promulgate a rule that will successfully satisfy the interests of the relevant parties with scientific reality. The goal, perhaps, should be to simply promulgate the most administrable rule that fulfills the purpose of the act and avoid wading too deep into those murky waters.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
*Timothy Featherston is a Junior Editor on MJEAL. He can be reached via email at firstname.lastname@example.org
1 Brady Dennis, Scott Pruitt, Longtime Adversary of EPA, Confirmed to Lead the Agency, The Washington Post (Feb. 17, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/02/17/scott-pruitt-long-time-adversary-of-epa-confirmed-to-lead-the-agency/?utm_term=.544850bb70c7.
 Juliet Eilperin, Trump to Roll Back Obama’s Climate, Water Rules Through Executive Action, The Washington Post (Feb. 20, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/02/20/trump-to-roll-back-obamas-climate-water-rules-through-executive-action/?utm_term=.f3b6ca4abb8b.
Ariel Wittenberg, Long Slog Likely if Trump EPA attempts WOTUS Do-Over, Greenwire (Feb. 10, 2017), http://libproxy.law.umich.edu:2217/greenwire/stories/1060049868/search?keyword=WOTUS.
 33 U.S.C § 1344.
 33 U.S.C § 1367(7).
 Wittenberg, supra note 3.
 See Id.
 Rapanos v. United States, 547 U.S. 715 (2006).
 33 CFR § 328.3(a).
 Rapanos, 547 U.S. at 722.
 Id. at 739.
 Wittenberg, supra note 3.
 Rapanos, 546 U.S. at 779 (Kennedy, J., concurring).
 Wittenberg, supra note 3.