President Trump has directed the Administrator of the Environmental Protection Agency (“EPA”) and the Assistant Secretary of the Army for Civil Works (“Army Corps”) to review the 2015 Clean Water Act Rule (“Rule”) defining “Waters of the United States.” The Executive Order further directs the EPA and Army Corps to pursue rescission of the Rule or revisions to the Rule. Significantly, the Executive Order requires any revisions to the Rule to be consistent with Justice Scalia’s opinion from the Supreme Court’s plurality decision in Rapanos v. United States (2006) 547 U.S. 715, which would likely have the effect of eliminating federal Clean Water Act jurisdiction over waters and wetlands that lack a continuous surface connection to navigable waters.
Issued in 2015 under the Obama Administration, the Rule defines the term “Water of the United States” and was developed in response to a series of Supreme Court decisions between 2001 and 2006. Although applauded by environmental stakeholders, the Rule has faced broad and significant opposition, most notably by the American Farm Bureau Federation, and has been embroiled in litigation since its issuance. As a result, implementation of the Rule has been delayed by the Federal Courts.
The substantive effect of the Executive Order remains to be seen. Although it expresses a clear preference for limited federal Clean Water Act jurisdiction as articulated in Justice Scalia’s Rapanos opinion, a regulatory shift in this direction would likely take years to implement through the federal rule-making process. Moreover, like the current Rule, it would almost certainly be subject to litigation and judicial scrutiny from stakeholders opposed to its implementation.
Notwithstanding the limited immediate impact on current federal regulations, the Executive Order does send a strong signal on how the Trump Administration views the balance between environmental policy and economic development. In his remarks, President Trump noted that the Rule was “one of the worst examples of federal regulation” and that its elimination would be a catalyst for job creation.
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