WASHINGTON, May 10, 2017-The Trump administration is working quickly to withdraw the controversial waters of the United States rule, but that may be the easy part. It’s trickier to decide on a replacement.

EPA officials met last month with associations representing state and local agencies to outline the agency’s plans to first withdraw the WOTUS rule and then replace it with something less expansive.

Last week, EPA sent to the Office of Management and Budget a draft of its proposal to scrap the  Clean Water Rule, which is how supporters refer to it. Other federal agencies now have the opportunity to review the proposed withdrawal of the WOTUS rule, which has been stayed by the courts since a few weeks after it went into effect in the summer of 2015.

Then on May 8, EPA Administrator Scott Pruitt and Douglas Lamont, a senior Army Corps of Engineers official, sent letters to the nation’s governors asking for their input on the process.

Don Parrish, the American Farm Bureau Federation’s senior director of regulatory relations, says a rewrite of the rule is a “huge” Farm Bureau priority.

But the new administration will face the same challenges as the Obama administration did in interpreting the hazy Rapanos Supreme Court decision from 2006, in a case challenging federal jurisdiction to regulate isolate wetlands under the Clean Water Act. The case ended up in a 4-1-4 split: 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 said that the federal government’s “jurisdiction over wetlands depends upon the existence of a significant nexus between the wetlands in question and navigable 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 chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” 

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. The dissent called Kennedy’s approach “far more faithful to our precedents and to principles of statutory interpretation than is the plurality’s,” written by Scalia.

ScaliaBut it’s the Scalia opinion that the Trump administration 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.

“The agencies plan to propose a new definition that would replace the approach in the 2015 Clean Water Rule with one that reflects the principles that Justice Scalia outlined in the Rapanos plurality opinion,” the letter to the governors says.

Scalia said the Clean Water Act “confers jurisdiction only over relatively permanent bodies of water” and wetlands that have a “continuous surface connection” to those waters. But Stephen Samuels, a recently retired Justice Department attorney who spent more than 30 years specializing in the Clean Water Act, says, “There would be some real difficulties in promulgating a rule that simply adopts the Scalia standard.”

First, “five justices disagreed with the Scalia standard,” he said. In addition, no circuit court of appeals that has considered CWA jurisdiction post-Rapanos has adopted the Scalia standard.

Chances seem slim that the Supreme Court will want to address the issue again, putting added pressure on the administration to come up with a clear replacement. Attorney Mark Ryan, who helped write the Clean Water rule at EPA but is now in private practice in Washington state, says that “the Supreme Court has not been eager to take the case up.” It’s been asked “at least eight times since Rapanos to take another look” at the decision, but declined to do so.

While repealing the existing rule without promulgating a replacement would “not be particularly complicated,” Samuels says it’s also more than just “a snap of the fingers.”

The administration would have to propose to withdraw the rule and then issue a final rule explaining its decision, which can become the subject of a new lawsuit arguing that there is no basis for getting rid of the existing rule.

An extensive administrative record supporting the current rule exists, including “hundreds of scientific studies that talk about the importance of upstream waters to navigable waters,” Samuels says. The Obama administration also submitted a detailed brief to the 6th Circuit Court of Appeals defending the existing rule a week before Donald Trump took the oath of office.

But Samuels says that “simply a rescission is much more likely to survive a judicial challenge than adoption of the Scalia standard,” which he says “would be hard to justify in light of the science, in light of the case law, in light of what the agencies did in the context of the Clean Water Rule, and in light of the brief” in the 6th Circuit.

“It would be a change of EPA’s position where I think the bar would be higher than if they were writing on a blank slate,” he said, calling use of the Scalia standard “not just a huge narrowing of jurisdiction from the Clean Water Rule, but a huge narrowing of jurisdiction” from 40 years of implementation of the Clean Water Act.

The Farm Bureau’s Parrish, however, says that the Trump executive order only said that EPA and the Corps should “consider” using the Scalia test. “There’s a huge difference between ‘consider’ and doing it,” he says. “The president was very clear.” Parrish expects litigation no matter what happens. “Whatever is done will be challenged, we’re confident in that,” he says, predicting a “knife fight” when EPA proposes to withdraw the rule. AFBF has probably been the fiercest critic of WOTUS, claiming that it would allow the feds to look for jurisdictional waters in areas that include virtually every acre of some states.

At a Senate hearing last week, Sen. Deb. Fischer, R-Neb., cited an analysis performed for AFBF that concluded 100 percent of the land area of Virginia “is located within 4,000 feet of something that meets the WOTUS rule definition of tributary,” as well as 99.7 percent of Missouri, 99 percent of Montana, 99 percent of Pennsylvania, 97 percent of Iowa, 95 percent of Oklahoma, 95 percent of California, and 92 percent of Wisconsin.

The 4,000-foot limit comes from the WOTUS rule, which allows the government to claim jurisdiction on a case-by-case basis over waters fully or partially within 100-year floodplains of traditional navigable waters or within 4,000 feet of the high tide line or the ordinary high water mark of a navigable water or tributary. A former Corps general said at the hearing that the limit was a stark example of something in the final rule that “did not reflect what the science said.”

AFBF says on its website that it supports a rule “that conforms to the limits approved by Congress and affirmed by the Supreme Court,” but Parrish says the bureau is working to add some specificity to that. We’re giving a lot of thought” to what should be in a replacement rule, Parrish says. “They ought to start with water – start with something that actually has H20 in it.”

Ephemeral streams, which only flow when there’s rainfall, should clearly be out, he says. “Most people understand the distinction between a stream that flows a substantial amount of time and something that is only wet or flows after a rainfall event,” Parrish says. Policy calls on seasonal streams raise really tough questions, he says. “We’re working really hard” to come up with a position on that, Parrish says.

“We think the administration is sufficiently equipped to do something that is going to leave a legacy that will stand up over the test of time,” he says. “The key is where they draw the line.”