Editor's note: The following was originally published today on GCSAA's government affairs website, http://cqrcengage.com/gcsaa.
President Donald Trump issued an executive order today directing the Environmental Protection Agency (and the Army Corps of Engineers to 1) “review” the Clean Water Rule and 2) “publish for notice and comment” a rule that either revises the pending Clean Water Rule (WOTUS) or replaces it entirely. Placed on hold nationwide since October 2015 by the 6th Circuit Court of Appeals, the Clean Water Rule expanded the Clean Water Act’s jurisdiction to include waters previously under state or local control, such as isolated ponds, wetlands, ditches and ephemeral drainages (i.e. those with only an intermittent water flow).
Beyond this, the executive order lays out a number of principles for the agency review of the Clean Water Rule. The EPA, Corps of Engineers — as well as any other agency’s or executive department involved — must follow the statement of policy laid out in Section 1, i.e. keep navigable waters pollution free while promoting economic growth, avoiding regulatory uncertainty and respecting states’ rights.
Further, it narrows the scope of navigable waters in any future rule making to those waters Justice Antonin Scalia referenced in his 2006 opinion in the Supreme Court case of Rapanos v. United States. Scalia had argued that the Clean Water Act should only cover those waters 1) with a permanent flow; or 2) with a surface water connection to waters with a permanent flow.