Waters of the United States – Still Murky

A flurry of recent executive and judicial actions concerning the Waters of the United States (WOTUS) Rule seem to highlight process and perception more than substance, suggesting that while we can look forward to years of more litigation, not much will really change. The reach of the federal government’s jurisdiction over “navigable waters” will continue to be applied on a ‘case by case’ basis for the foreseeable future. Here are the latest developments:

  • The White House signed an Executive Order (EO) on February 28, 2017 that orders Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) to review the 2015 Rule, develop a new proposed rule to rescind or revise it, and to interpret the term “navigable waters” in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos;
  • On April 4, the Supreme Court denied the Administration’s request for a stay of its current review of the Sixth Circuit’s decision that the 2015 Rule may be reviewed directly to the Circuit Court of Appeal;
  • It is likely that the Administration will repeal the 2015 Rule and then take much more time to develop a new rule.  Meanwhile, the Eighth Circuit Court of Appeals holds that either the Scalia or Kennedy test may apply;
  • Federal District Judge Ann Montgomery’s recent decision in Hawkes Co. v. Army Corps of Engineers reflects a judicial desire to see the Corps apply the Kennedy test based on a sound record, and impatience with the impact of the Corps lengthy process on land owners. 

Louis Smith reviewed these and other developments in Water Law yesterday, April 20, 2017, at the annual Minnesota Environmental Law Institute.  

The direction to follow Scalia’s opinion in Rapanos would mean shifting the definition away from Kennedy’s “significant nexus” test.  To discern the details of a Scalia test, commentators have pointed to Scalia’s preference for direct surface connections between waters, and for “relatively permanent, standing or continuously flowing bodies of water” as opposed to “channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”  Since Rapanos, Circuit Courts of Appeals find jurisdiction when Kennedy’s test is satisfied, or when either Kennedy’s or Scalia’s test would be satisfied, but no published opinion has ever held Scalia’s test alone governs.

Until there is a new rule, the Eighth Circuit continues to follow U.S. v. Baileyand consider jurisdiction valid if it satisfies either the Kennedy significant nexus, or the Scalia direct surface connection test.

  • The Seventh and Eleventh Circuits have held that Kennedy’s test alone governs. 
  • The First, Third, and Eighth Circuits have held that jurisdiction is proper if either Kennedy’s or Scalia’s test is fulfilled.
  • The Fourth and Ninth Circuits have applied Kennedy’s test, but without ruling whether Scalia’s test should be used in the future. 
  • The Fifth and Sixth Circuits have applied both tests, but without ruling whether one or both should be preferred in the future.