This week, President Trump issued an Executive Order that signals the beginning process for rescinding the Obama EPA’s rule redefining Waters of the United States under the Clean Water Act. The E.O. can be found here, but it’s included below in its entirety.
Because the Rule is subject to the notice-and-comment requirements of the Administrative Procedures Act, the EPA and Corps of Engineers will need to articulate for the record a rational explanation for a change in direction. Here is a Fed Reg Notice of Intent to Review and Rescind. That new direction is reflected in the text, which directs the Agencies to revise the rule consistent with the opinion of the late Justice Scalia, who authored the plurality opinion in the Supreme Court Rapanos decision, which resulted in a divided 4-1-4 decision.
According to Justice Scalia, federal jurisdiction is only properly asserted over water bodies that are “relatively permanent, standing or continuously flowing.” This is a shift from both the Bush and Obama Administrations who relied heavily upon Justice Kennedy’s concurring opinion that defined the federal hook as requiring a “significant nexus” with a traditional navigable waterway. This change will have direct implications for many water bodies and features, such as ditches hydrologically connecting water bodies, ephemeral streams, western arroyos and dry washes, isolated headwaters and wetlands, and prairie potholes, all of which the Obama Rule sought to protect.
With Administrator Pruitt taking the helm less than two weeks ago, and without an Assistant Administrator named for the Office of Water, this will be a tough long slog and will take longer than some expect. The numerous court cases against the Obama Rule will continue until such time as the Rule is officially withdrawn.
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RESTORING THE RULE OF LAW, FEDERALISM, AND ECONOMIC GROWTH
BY REVIEWING THE “WATERS OF THE UNITED STATES” RULE
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Policy. It 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 of the Congress and the States under the Constitution.
Sec. 2. Review of the Waters of the United States Rule. (a) The Administrator of the Environmental Protection Agency (Administrator) and the Assistant Secretary of the Army for Civil Works (Assistant Secretary) shall review the final rule entitled “Clean Water Rule: Definition of ‘Waters of the United States,'” 80 Fed. Reg. 37054 (June 29, 2015), for consistency with the policy set forth in section 1 of this order and publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with law.
(b) The Administrator, the Assistant Secretary, and the heads of all executive departments and agencies shall review all orders, rules, regulations, guidelines, or policies implementing or enforcing the final rule listed in subsection (a) of this section for consistency with the policy set forth in section 1 of this order and shall rescind or revise, or publish for notice and comment proposed rules rescinding or revising, those issuances, as appropriate and consistent with law and with any changes made as a result of a rulemaking proceeding undertaken pursuant to subsection (a) of this section.
(c) With respect to any litigation before the Federal courts related to the final rule listed in subsection (a) of this section, the Administrator and the Assistant Secretary shall promptly notify the Attorney General of the pending review under subsection (b) of this section so that the Attorney General may, as he deems appropriate, inform any court of such review and take such measures as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule.
Sec. 3. Definition of “Navigable Waters” in Future Rulemaking. In connection with the proposed rule described in section 2(a) of this order, the Administrator and the Assistant Secretary shall consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
THE WHITE HOUSE,
February 28, 2017.