EPA to ‘provide clarity’ on clean water policies
waters. The rule says that wetlands and tributaries must be “relatively permanent,” a phrase used in previous court opinions, which means they can be intermittent. Defining it this way extends federal jurisdiction to 60 percent of the water bodies in the United States.
Trump signed an executive order in late February calling on EPA and the Army Corps of Engineers to revisit the regulation, a move he described as “paving the way for the elimination of this very destructive and horrible rule.”
The executive order instructed the agencies to change the interpretation of a 2006 Supreme Court decision on what falls under the federal jurisdiction under the Clean Water Act. In the Rapanos v. United States decision, the court split three ways. Its four most conservative justices at the time offered a very constrained view that only “navigable waters” met this test. But Justice Anthony Kennedy, who refused to join either the conservatives or the liberals, said in a concurring opinion that the government could intervene when there was a “significant nexus” between large water bodies and smaller, as well as intermittent, ones.
Trump’s executive order said that federal officials should rely on the dissenting opinion of the late Justice Antonin Scalia, who argued the law should only apply to “navigable waters.” No court has ever ruled that this test is the single decisive threshold for triggering Clean Water Act protections.