The Nickel Report

On February 28, 2017, President Trump signed an Executive Order (EO)  that sets into motion a process for the Administrator of the Environmental Protection Agency (EPA) and the Assistant Secretary of the Army for Civil Works (jointly, the “Agencies”) to review the Obama Administration’s Waters of the US (WOTUS) Rule.  80 Fed. Reg. 37,054 (June 29, 2015). The EO directs the Agencies to review the WOTUS Rule for consistency with the Clean Water Act (CWA) and the policies set forth in the EO, stating that “[i]t is in the national interest to ensure 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 played by Congress and the States under the Constitution.”  Following review, the EO instructs the Agencies to publish, as appropriate, a proposed rule for notice and comment rescinding or revising the WOTUS Rule.

In an official statement, EPA Administrator Scott Pruitt indicated that “EPA intends to immediately implement the executive order and submit a notice to the Office of the Federal Register announcing our intent to review the 2015 rule, and then to propose a new rule that will rescind or revise that rule. The president’s action today preserves a federal role in protecting water, but it also restores the states’ important role in the regulation of water.”

Following the Obama administration’s publication of the WOTUS Rule, 31 states and 53 industry and environmental groups filed petitions challenging the validity of the rule. The petitions were consolidated in the US Court of Appeals for the Sixth Circuit, and that court ultimately stayed the rule. Recently, the US Supreme Court decided to review whether challenges to the rule belong at the federal circuit court or district court level. To ensure coordination between the administrative and judicial processes, the EO requires the Agencies to promptly notify the attorney general of the Agencies’ review, and notes that the attorney general may then inform the courts or take action “as he deems appropriate.”

The White House also requires the agencies, in conducting the review, to consider defining WOTUS “in a manner consistent with” Justice Scalia’s opinion in Rapanos v. United States, 547 U.S. 715 (2006). The Rapanos decision split the justices 4-1-4. The plurality opinion (authored by Justice Scalia) held that the CWA confers jurisdiction over only “relatively permanent bodies of water,” and “only those wetlands with a continuous surface connection” to traditional navigable waters. Justice Kennedy concurred in the judgment, concluding that the agencies’ CWA jurisdiction extends only to waters with a “significant nexus” to traditional navigable waters.

The next steps for implementing the EO will involve the Agencies’ undertaking administrative action to solicit notice and comment on the proposed decision, including compliance with other applicable statutes and executive orders (including the “One-in, Two-out” EO). In addition, the EO directs the heads of all executive departments and agencies to review any regulations, guidelines or policies implementing or enforcing the WOTUS Rule and rescind or otherwise revise those documents in accordance with the new rulemaking. This language could provide a basis for the Agencies to reconsider any jurisdictional determinations that were made during the 43-day period the WOTUS Rule was in effect.