President Donald Trump, on February 28, signed an executive order (EO) directing the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) to issue a proposed rulemaking for notice and comment to rescind or revise their joint 2015 Clean Water Rule, also known as the Waters of the United States or “WOTUS” rule. The rule was intended to clarify the jurisdictional scope of the Clean Water Act. Shortly after the EO was issued, the EPA and the Corps issued a notice indicating their intent to review and either rescind or revise the rule.
The EO and the agencies’ notice signal a potential move to substantially narrow the jurisdictional scope of the Clean Water Act (CWA). This is a critical issue for many sectors of the economy and environmental protection and has been the subject of uncertainty and litigation since the statute was enacted in 1972 — with the U.S. Supreme Court having issued three major decisions on the subject.
Notwithstanding the president’s high-profile announcement, however, the current uncertainty over the CWA’s scope is likely to remain for the foreseeable future. The executive order begins a lengthy process to re-evaluate the Clean Water Rule that likely will take years for completion of the rulemaking and subsequent litigation. Whether the Trump Administration seeks full rescission or a replacement of the rule, there will be substantial legal risk for the agencies involved — though the nature of that risk will differ greatly between these two courses. Moreover, the extended timeline associated with the regulatory process and litigation means continued regulatory uncertainty for several years, including a continuation — at least in the near term — of the current process of case-by-case jurisdictional determinations.