In yesterday’s edition of Lion News, we discussed two EPA regulations that may face legal challenges in 2017
. Hours later, the President took action on one of those rules, signing an executive order to require the new Administrator of the EPA to review the Final Rule “Definition of Waters of the United States,” or “WOTUS Rule.” Read the full Executive Order here.
In addition to requiring a review of the WOTUS Final Rule, which is already the subject of a court battle
, Section 3 of the Executive Order requires EPA to interpret the term “navigable waters” in a manner consistent with the opinion of Antonin Scalia in Rapanos v. United States.
In his opinion on Rapanos v. United States
, Justice Scalia referenced a Supreme Court case from 1870, The Daniel Ball
, in which the court interpreted “navigable waters” to mean those waters that are “navigable in fact, or susceptible to being rendered so.”
When it created the WOTUS Rule, EPA based its interpretation of “navigable waters” on Justice Kennedy’s concurring statement
in the Rapanos
case, which provides for a more broad interpretation than Scalia’s opinion on the case.
For more information on major Supreme Court cases that informed EPA’s interpretation of “navigable waters” and the “Waters of the United States,” read: EPA Jurisdiction—Sackett v. EPA Post-Rapanos Guidance from EPA and Army Corps of Engineers
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