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Water Blog

Executive Order Calls for Rescinding or Revising WOTUS Rule

On February 28, President Trump issued an Executive Order (the “Order”) calling on the United States Environmental Protection Agency (“EPA”) and the United States Army Corps of Engineers (“USACE”) to rescind or revise the controversial Waters of the United States (“WOTUS”) rule, which was finalized in June 2015. Specifically, the Order requires the EPA Administrator and the Assistant Secretary of the USACE to review the WOTUS rule in light of a policy statement set forth in the Order, which states that it is in the national interest to both keep the nation’s water free from pollution, and “promot[e] economic growth, minimiz[e] regulatory uncertainty, and show[] due regard for the roles played by Congress and the States under the Constitution.”

The Order does not mandate that EPA and USACE reach any particular result in their required review of the WOTUS rule. However, the Order instructs the agencies to consider interpreting the term “navigable waters,” which defines the jurisdictional scope of the Clean Water Act (“CWA”), consistent with Justice Scalia’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006). Whereas the WOTUS rule interprets the CWA to cover traditional navigable waters, interstate waters, territorial seas, impoundments, tributaries, adjacent waters, and other waters as determined on a case-by-case basis, under Justice Scalia’s plurality opinion in Rapanos, the CWA would apply only to “those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] … oceans, rivers, [and] lakes.’” Should the review by EPA and USACE determine that rescission or revision of the WOTUS rule is warranted, the Order instructs the agencies to propose a new rulemaking, including a period for public notice and comment, “as appropriate and consistent with law.”

Finally, the Order also addresses the pending judicial challenges to the WOTUS rule. By way of background, implementation of the WOTUS rule has been stayed by the U.S. Court of Appeals for the Sixth Circuit, and the United States Supreme Court recently granted certiorari to address the question of whether the Sixth Circuit has jurisdiction to address the consolidated challenges to the WOTUS rule pending before it. The Order requires EPA and USACE to notify the Attorney General of their review of the WOTUS rule so that the Attorney General may “take such measures as he deems appropriate” with respect to the pending WOTUS litigation.

It remains to be seen precisely what actions, if any, the government will take in the pending litigation regarding the WOTUS rule in light of the Order, and what the result of the review by EPA and USACE will be.

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Author

Jay Rothrock

Jay Rothrock Senior Associate