On February 28, 2017, the Trump administration issued an Executive Order (the “Order”) directing the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“USACE”) to begin the process of “revising or revoking” the Obama administration’s 2015 “Clean Water Rule” (the “Rule”) which sought to define the extent of federal jurisdiction over “waters of the United States” under the Clean Water Act (“CWA”). According to remarks President Trump delivered when he signed the Order, it is designed to reduce the degree to which EPA and USACE exercise jurisdiction over waters which do not “truly affect interstate commerce.”

EPA and USACE are directed to review the Rule and “publish for notice and comment a proposed rule rescinding or revising the Rule” after reviewing it for consistency with the Order’s stated policy “to ensure that the Nation’s navigable waters be 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.”

EPA finalized the Rule in 2015, stating that it sought to provide a predictable definition of federal jurisdiction under the CWA on “waters of the United States” consistent with U.S. Supreme Court decisions on the scope of those “waters.”  The Rule was challenged in numerous federal courts across the country by industry, states, and environmental groups. The challenges were consolidated by lottery in the Sixth Circuit, which stayed the Rule nationwide pending consideration of whether, under the CWA, review should go forward in the district or circuit courts. The Sixth Circuit subsequently determined that it, not the district courts, had exclusive jurisdiction. The U.S. Supreme Court granted an interlocutory petition for review of that decision, and briefs are due this spring. In the meantime, litigation on challenges to the Rule is proceeding before the Sixth Circuit, and the stay of the Rule remains in place.

Most of the district court cases have been stayed, held in abeyance, or dismissed without prejudice pending resolution of the Sixth Circuit litigation. However, the District Court for the District of North Dakota, which had previously stayed the Rule as to the 13 states that were before it challenging the Rule, has decided to proceed on the merits notwithstanding the Sixth Circuit’s ruling on jurisdiction. Challenges to the Rule include, among others, issues laid out in the policy section of the Order issued by the President.

Because the Rule has been stayed, the Order does not immediately change the status quo. EPA and USACE had released a joint memorandum shortly after the stay, stating that the agencies would continue to rely on prior 2008 guidance in determining jurisdiction. That guidance was issued following the U.S. Supreme Court’s Rapanos decision on CWA wetlands jurisdiction.

On March 6, 2017, EPA and USACE published a “Notice of Intent to Review and Rescind or Revise the Clean Water Rule” in the Federal Register, initiating their process of review in accordance with the Order. Any attempt to revise or revoke the Rule will likely be a lengthy process, as EPA and USACE previously compiled a voluminous administrative record in support of the Rule. The Order also directs EPA and USACE to notify the Attorney General of the pending review, so that he may “take such measures as he deems appropriate” regarding the litigation while the review is pending. The Department of Justice (“DOJ”) has not yet indicated how, if at all, it will take the Order into consideration in its defense of the pending litigation. It seems likely that DOJ will request that litigation over the Rule be held in abeyance pending completion of review by EPA and USACE.