On February 28, 2017, President Trump issued an Executive Order directing the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACE) to review the federal Clean Water Act (CWA) definition of "Waters of the United States"(WOTUS) Rule (the Rule) (80 Fed. Reg. 37054, June 29, 2015). Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule, Executive Order (Feb. 28, 2017) (EO). The EO directs EPA and ACE to review the WOTUS Rule for consistency with the policies set forth in the EO which specifies that "It is in the national interest to ensure that the Nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution." The EO also directs EPA and ACE to "publish for notice and comment a proposed rule rescinding or revising the [WOTUS] rule, as appropriate and consistent with law."
Pursuant to the EO, EPA and ACE submitted for publication in the Federal Register, a notification of intention to review and rescind or revise the Rule. Notice of Intention to Review and Rescind or Revise the Clean Water Rule, Environmental Protection Agency and Dept. of Defense, Feb. 28, 2017. The notification will be published in the Federal Register in the coming days.
The EO also directs EPA and ACE to consider interpreting the term "navigable waters,"in a manner consistent with the opinion of Justice Scalia in Rapanos v. United States, 547 U.S. 715 (2006). The Rapanos opinion set out two separate standards for CWA jurisdiction. See Rapanos at 715‑718. Justice Scalia, writing for a plurality, determined that the statute should only apply when there is a "continuous surface connection"between "relatively permanent"waters. Id. at 743. Justice Kennedy, on the other hand, determined that jurisdiction should be based on whether a water or wetland possesses "a significant nexus to waters that are or were navigable in fact or that could reasonably be so made." Id. at 759. Neither standard was supported by a majority, so neither standard has become binding precedent. See Id. at 715-718. Regulators, however, have generally followed Justice Kennedy's standard, and thus, a switch to Justice Scalia's standard would represent a significant change in interpretation of the jurisdictional extent of the CWA. See 80 Fed. Reg. 37054, 37056, 37060-37061 [WOTUS Rule].
From the wording of the EO, it is unclear whether the regulatory agencies might take quick action to withdraw the WOTUS Rule and propose a replacement later, or go through notice and comment rulemaking that would amend the Rule. In either case, however, the agencies will need to develop a robust administrative record to support revisions to the Rule, since the Supreme Court requires that an agency provide "reasonable explanation for its action," display "awareness that it is changing position,"and demonstrate that "there are good reasons for the new policy." See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009).
The EO gives the Attorney General wide latitude in how to deal with litigation on the Rule. The DOJ can seek a voluntary remand, which would suspend litigation on the Rule and allow EPA and ACE to review and revise the Rule as those agencies deem necessary. Such a request would likely be made in the U.S. Court of Appeals for the Sixth Circuit in the case of Murray Energy v. EPA, No. 15-3751 (6th Cir. Jan. 25, 2017), which is the primary case testing the WOTUS Rule's merits. See KEAG Bulletin No. 2016‑05. The court, however, could deny a request for remand and allow litigation to continue on the Rule's merits, until an agency formally withdraws it. In separate litigation on the WOTUS Rule, the Supreme Court is set to consider the National Association of Manufacturers v. U.S. Department of Defense, No. 16-299 (S. Ct.). See KEAG Bulletin No. 2017‑05 for a brief discussion of the Murray Energy and National Association of Manufacturers cases. National Association of Manufacturers addresses whether challenges to a CWA jurisdiction policy should be filed in appellate or district courts. The Trump Administration could wait until the Supreme Court rules on the National Association of Manufacturers case before attempting to terminate litigation over the Rule in the Sixth Circuit, since that case has been stayed pending resolution of the Supreme Court case. Further, without a decision from the Supreme Court, suits over the eventual Trump Administration rule will face continued uncertainty over which venue is appropriate.