Justice Scalia’s Definition of “Waters of the United States” to Become the Law of the Land?
On February 28, 2017, Donald Trump signed the “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” This executive order requires the Administrator of the EPA, the Assistant Secretary of the Army for Civil Works, and other executive department and agency heads to “...rescind or revise, or publish for notice and comment proposed rules rescinding or revising, [the Clean Water Rule] as appropriate and consistent with law.” The stated policy in the executive order is “...to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.” In carrying out the task, “...the Administrator and the Assistant Secretary shall consider interpreting the term ‘navigable waters,’ as defined in 33 U.S.C. 1362(7) as consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547. U.S. 715 (2006).
This executive order applies to what has come to be known as the “Clean Water Rule,” which defines the jurisdiction of the Clean Water Act. The EPA and the U.S. Army Corps of Engineers developed the Clean Water Rule in accordance with Justice Kennedy’s “significant nexus test” in the Rapanos case. The “nexus” or connection to Clean Water Act jurisdiction is to the biological, chemical, or physical integrity of nation’s waters. Rapanos was a fractured case; there were three separate opinions on how the “waters of the United States” should be defined, none of which was held by a majority. Justice Scalia crafted his opinion by resort to his dictionary. According to Justice Scalia, the definition of the “waters of the United States” – and hence the jurisdiction of the Clean Water Act – can only be defined as:
...only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] ...oceans, rivers, [and] lakes. See Webster’s Second 2882. The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall...
Wetlands that are adjacent to “waters of the United States” are also under the jurisdiction of the Clean Water Act under United States v. Riverside Bayview Homes, Inc., 474 U.S. 171 (1985). The definition of “wetlands” has not changed; rather, it is what wetlands are adjacent to (that is, the waters of the United States) that is the subject of the executive order. And those waters would be considerably diminished if the EPA and the Corps of Engineers adopt Justice Scalia’s formulation.