Executive Order Addresses Waters of the United States Rule

UPDATED 03.07.2017 The Notice of Intent to review and rescind the Clean Water Rule as published in the Federal Register is available here.

On February 28, 2017, President Trump signed the Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule.  This rule defines what bodies of water are subject to protections under the Clean Water Act as navigable waters, defined as waters of the United States (WOTUS).

The Executive Order states a policy of “ensur[ing] 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.”  It directs the Administrator of the EPA and the Assistant Secretary of the Army for Civil Works to review the rule for consistency with this policy, rescinding or revising it as needed, as well as to review other orders, rules, regulations, guidelines, or policies implementing or enforcing the rule.  The Executive Order also notes that action by the Attorney General in pending litigation may be warranted.  The Executive Order further suggests that “navigable waters” be defined in a future rulemaking consistent with the opinion of Justice Scalia in Rapanos v. United States, a more restrictive definition.

The same day, the EPA submitted a Notice of Intention to Review and Rescind or Revise the Clean Water Rule to the Federal Register for publication.  This notice announces the intention of EPA and the Army to review the rule and “provide[s] advanced notice of a forthcoming proposed rulemaking consistent with the Executive Order.”  The notice states that “[a]gencies have inherent authority to reconsider past decisions and to revise, replace or repeal a decision to the extent permitted by law and supported by a reasoned explanation.”

While there has not yet been an Executive Order issued concerning the Clean Power Plan, this Executive Order on WOTUS may provide a preview of what is to come for the CPP, including an EPA notice to start the review process as soon as the Executive Order issues.  The Stream Protection Rule, which covered waterways near coal mines often subject to pollution as a result of mining, has already been overturned using the Congressional Review Act.

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