Trump Instructs EPA to “Review and Rescind or Revise” Waters of the U.S. Rule

On February 28, 2017, President Trump signed an Executive Order (EO) instructing the EPA and Army Corps of Engineers (the “Agencies”) to begin a rulemaking to rescind or revise the Clean Water Rule, a 2015 regulation that defined the phrase “waters of the United States” (WOTUS) as used in the federal Clean Water Act (CWA), thereby identifying those waters protected by the Act’s restrictions on pollutant discharges. That same day the Agencies released for publication in the Federal Register a “Notice of Intention to Review and Rescind or Revise the Clean Water Rule,” asserting their “inherent authority to reconsider past decisions and to revise, replace or repeal a decision to the extent permitted by law and supported by a reasoned explanation.” Most notably, the Agencies stated that they will “consider interpreting the term ‘navigable waters,’ as defined in the CWA in a manner consistent with the opinion of Justice Scalia” in Rapanos v. United States, 547 U.S. 715 (2006). 

While neither the EO nor the Agencies’ Federal Register notice have any direct regulatory implications, and any rulemaking will likely take months if not years, these public statements set in motion the new administration’s effort to undermine one of our nation’s cornerstone environmental laws.

Earthrise Law Center represents the Waterkeeper Alliance, Center for Biological Diversity, Center for Food Safety, and several other organizations in a lawsuit challenging portions of the Clean Water Rule. We filed suit in 2015 because the Rule created several broad, categorical exemptions for waters that have historically been protected by the CWA. For example, the rule exempted from CWA jurisdiction all or most groundwater, ephemeral streams, farmed wetlands, ditches, and waters located more than 4,000 feet from a navigable water or tributary, regardless of their ecological significance. In so doing, the Rule deviated from the consensus reached by the EPA’s own Science Advisory Board and ignored the robust scientific record created by the agencies themselves during the rulemaking process. Internal memoranda, written by senior Corps of Engineers officials and leaked to the press in 2015, called the Rule’s exemptions “arbitrary” and a “textbook example of rulemaking that cannot withstand judicial review,” and they bemoaned the Rule’s “abandonment of CWA jurisdiction over many lakes, ponds, and wetlands that are important parts of the tributary system of the navigable waters[.]”[1]

Nonetheless, Earthrise and our clients have taken the position that the core definitions found in the Clean Water Rule are worth saving if possible. The Rule’s categorical assertion of CWA jurisdiction over floodplain wetlands, wetlands adjacent to tributaries, and intermittent headwaters streams, for example, is strongly supported by the best available science and provides clarity and certainty for agency staff and regulated entities alike. It is these core jurisdictional provisions that are at risk because of the EO and the rulemaking that will follow. If the Agencies heed the President’s command and ultimately promulgate a replacement definition that hews closely to Justice Scalia’s plurality opinion in Rapanos,then we can expect the Agencies to define WOTUS to include “only relatively permanent, standing or flowing bodies of water” as well as “wetlands with a continuous surface connection to bodies that are ‘waters of the United States’ in their own right.” Id. 547 U.S. at 732, 742. Such a definition would represent the most sweeping rollback of CWA jurisdiction since the statute was enacted.

Ironically—and fortunately, for clean water advocates—vulnerable streams and wetlands at least have the potential to be afforded strong interim protections until the Agencies complete their future rulemaking or a court rules on the merits of the Clean Water Rule. The Rule is presently under a nationwide stay ordered by the Sixth Circuit Court of Appeals, meaning the “old” regulation defining “waters of the United States” continues to apply, subject to the Rapanos gloss and prior agency guidance construing that regulation.[2] For now, at a minimum, all waters that significantly affect the chemical, physical, or biological integrity of downstream navigable waters are protected by the CWA—limited, of course, by the Agencies’ will to enforce it.

Meanwhile the Clean Water Rule litigation continues, albeit slowly. Briefing is underway before the U.S. Supreme Court regarding the question of jurisdiction: that is, whether the Sixth Circuit has original jurisdiction to hear challenges to the Rule under 33 U.S.C. § 1369(b), or whether the cases must be brought in the first instance in the district courts. Although dozens of cases challenging the Clean Water Rule were filed in 2015, no court has yet to reach the merits of the Rule, and given the posture of the case it is unlikely there will be any substantive decision on the validity of the Rule before 2018 at the earliest. It remains to be seen whether there is a Clean Water Rule left to challenge (or defend) in 2018; undoubtedly, however, any future definitional rule promulgated by the Agencies will be vigorously litigated.