On February 28, 2017, President Donald Trump signed an Executive Order ordering federal agencies to review the "Waters of the United States" Rule, targeting the controversial 2015 Army Corps of Engineers' rule, 80 Fed. Reg. 37054 (June 29, 2015), that clarified the scope of federal Clean Water Act jurisdiction.
The Clean Water Act (CWA) regulates discharges to "navigable waters," defined as "waters of the United States (WOTUS)." Regulations in place since 1975 have defined WOTUS to include "not only actually navigable waters but also … all 'freshwater wetlands' that [are] adjacent to the other covered waters." Attempting to further clarify the CWA's jurisdictional reach, the Corps issued the "Clean Water Rule: Definition of 'Waters of the United States,'" Since the WOTUS Rule took a broad view of federal jurisdiction, several industry groups and states challenged the rule in courts across the country. Ultimately, the Sixth Circuit granted a nationwide stay of the WOTUS Rule in October 2015. As a result of the stay, agencies currently follow pre-WOTUS Rule agency guidance documents and case law, which generally implement the significant nexus test.
Under the new Executive Order, the EPA Administrator and the Assistant Secretary of the Army for Civil Works can either revise or rescind the WOTUS Rule and, in any future rulemaking, must consider interpreting "waters of the United States" much more narrowly.
Thus, a new rule consistent with the Executive Order could move from the broader "significant nexus" standard to a narrower, "relatively permanent/surface water connection" jurisdictional test. Once a new rule is in place, orders and guidance implementing the new rule would replace current agency guidance. As a result of the Executive Order, the Corps will almost certainly take a narrower approach to federal CWA jurisdiction in the future. Current law, including agency guidance now in effect, generally applies the significant nexus standard.
While the Executive Order does not go so far as to mandate a new rule and technically allows the agencies to rescind - but not replace - the WOTUS Rule, it is extremely unlikely there will be a return to the pre-WOTUS landscape, in which the significant nexus standard generally governed federal jurisdictional determinations. The Trump Administration has signaled its strong disapproval of the potentially broad sweep of the significant nexus standard and we expect interpretations from the Corps and EPA to reflect the Administration's policy. Litigation challenges to individual permit decisions will likely be frequent as the Administration narrows the channel of federal jurisdiction under the Clean Water Act.
The Order also addresses ongoing litigation on the 2015 WOTUS rule. The Administrator and the Assistant Secretary are instructed to promptly notify the Attorney General of the review of the WOTUS rule pursuant to the Executive Order. The Attorney General may at his discretion inform the court and "take such measures as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule." On the litigation front, the Attorney General will likely request that the courts hearing challenges to the WOTUS Rule remand the Rule back to the Corps for reconsideration.