President Donald Trump issued, on February 28, 2017, an Executive Order ("EO") aimed at rescinding and revising the Obama Administration-issued final rule entitled "Clean Water Rule: Definition of 'Waters of the United States'" ("Rule" or "WOTUS"). The Rule was jointly promulgated on June 29, 2015 by the U.S. Environmental Protection Agency ("EPA") and the U.S. Army Corps of Engineers ("Corps") and has been the subject of legal challenges nationwide ever since. Trump's  EO, entitled "Restoring the Rule of Law, Federalism, and Economic Growth By Reviewing the 'Waters of the United States' Rule," directs reconsideration of WOTUS taking into consideration Justice Scalia's interpretation of the Clean Water Act as explained in his plurality authored opinion in Rapanos v. United States.¹   

Under the EO, the Administrator of the EPA and the Assistant Secretary of the Army must review WOTUS and publish a new rule either rescinding or revising it. In addition, the heads of all executive departments and agencies must now also review all orders, rules, regulations, guidelines, or policies implementing or enforcing WOTUS. The reviews are to be conducted in a fashion that ensures consistency with the nation's interest in protecting navigable waters, while promoting economic growth, minimizing regulatory uncertainty and preserving the appropriate roles of Congress and the States. Any orders, rules, regulations, guidelines, or policies found to be inconsistent with these principles are to be rescinded or revised to reflect the new rule being promulgated by the EPA and the Corps.

In order to address the ongoing litigation related to WOTUS, the EO also orders the prompt notification of the Attorney General such that the courts may consider the review in such pending litigation.  

Shortly after issuance of the EO, the EPA and the Corps issued a "Notice of Intention to Review and Rescind or Revise the Clean Water Rule"² citing "current regulatory uncertainty" under the Rule as well as the "scope and legal authority" of the Rule as written. Pursuant to, and consistent with, the President's EO, the Notice reflects that in reviewing the Clean Water Act definition of "navigable waters," Justice Scalia's narrow interpretation expressed in his plurality opinion in Rapanos would in fact be considered. The Notice also states that the authority to reconsider the Rule is inherent in an agency's discretion.   

Many have argued that the current Rule's complete reliance on Justice Kennedy's "significant nexus" standard does not represent a faithful interpretation of the fragmented Rapanos Court opinion and that the Supreme Court requires a rule that reconciles the views of its Members who concurred in the judgment. In Marks v. United States, the Supreme Court explained that the holding of a fragmented Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.³ Under this approach, the agencies must propose a rule that is much more narrowly focused than Kennedy's "any hydrologic connection" theory used to support asserting broad jurisdiction under the final rule. 

Any agency actions taken to rescind or revise the rule must comply with the Administrative Procedure Act, including opportunity for public comment and legal challenge. Clark Hill attorneys will continue to update you as opportunities to engage with the agencies on these issues arise.

¹ The Supreme Court has twice determined the EPA and Corps' assertion of federal jurisdiction to be overbroad. In SWANCC, the Supreme Court rejected attempts to assert jurisdiction via migratory bird use and in Rapanos, five Justices rejected a broad assertion of jurisdiction by mere hydrologic connection to navigable waters. Yet, the Obama Administration adopted the broad assertion in its Rule.

² 82 Fed.Reg. 12532, March 6, 2017.

³ Marks v. United States, 430 U.S. 188, 193 (1977) explains that the holding of a fragmented Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.