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March 08, 2017 Practice Points

Trump Administration Orders Narrowing of the Waters of the United States Rule

Despite the executive order’s decisive language, the legal quagmire surrounding the waters of the United States should remain in place for years to come.

By Joseph Drapalski – March 8, 2017

On February 28, 2017, President Donald Trump issued Executive Order 13778 directing the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers to review and revise the June 2015 Clean Water Rule that expansively defined the federal government’s Clean Water Act (CWA) permitting jurisdiction. The CWA’s permitting authority applies to “navigable waters,” which is defined without explanation as the “waters of the United States.” This omission has caused great confusion for almost two decades among the courts, the EPA, the Army Corps, successive administrations, landowners, environmentalists, and an untold number of other private citizens. The Obama administration’s 2015 Clean Water Rule hoped to settle the issue by extending the waters of the United States to the broadest possible extent, arguably including even minor isolated streams and wetlands as long as there is a “significant nexus” between those waters and larger, what might traditionally be considered “navigable waters,” such as rivers, lakes, or the ocean. In an abrupt change of course, this executive order should lead to the narrowing of what President Trump has described as “one of the worst examples of federal regulation [that has] truly run amok.”

President Trump’s “Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’” does not, and cannot, unilaterally rescind the 2015 Clean Water Rule. It does, however, order the EPA and the Army Corps to begin the formal notice-and-comment process by which the rule can be rescinded or revised. Critically, the executive order instructs the agencies to consider Justice Antonin Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006) in interpreting the term “navigable waters.” In Rapanos, Justice Scalia interpreted the CWA’s jurisdiction narrowly to apply only to “relatively permanent, standing or continuously flowing” waters or wetlands with a surface connection to navigable waterways. Any revision to the rule based on this interpretation would likely not extend to isolated streams, wetlands, or other minor bodies of water. In addition to restricting the extent of the CWA’s jurisdiction, the executive order also orders the EPA and the Army Corps to notify U.S. Attorney General Jeff Sessions of any pending review consistent with the executive order so that he might “inform any court of such review and take such measure as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule.” This indicates that Attorney General Sessions will attempt to keep the already embattled Clean Water Rule from taking effect while the EPA and the Army Corps complete their revisions.

Although President Trump’s executive order will significantly restrict the CWA’s permitting jurisdiction through a new definition of protected waters, a new rule will likely not take effect for years. The EPA and the Army Corps will need to draft a new rule, propose the rule, comply with the public notice-and-comment process, and face seemingly inevitable challenges by numerous environmental groups. In short, despite the executive order’s decisive language, the legal quagmire surrounding the waters of the United States should remain in place for years to come.

Joseph Drapalski is an associate with Norton Rose Fulbright US LLP in Los Angeles, California.

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