In a long-anticipated move from the new administration, President Trump signed an Executive Order on February 28 directing the EPA and the U.S. Army Corps of Engineers to review the Clean Water Rule and “publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with law.” The key direction in the Order instructs the review to “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).”
Under Scalia’s opinion in Rapanos, a water body would fall under the rule if it had a “continuous surface connection” with a permanent water body. In the same case, Justice Anthony Kennedy defined the standard as the existence of a “significant nexus” to a permanent water body. Kennedy’s standard is the underpinning of the current Clean Water Rule and its application results in a much greater number of water bodies qualifying as waters of the U.S. than would qualify under revisions that would follow Scalia’s standard.
The Clean Water Rule was promulgated on June 29, 2015, but implementation of the rule has been held up since then pending the resolution of numerous lawsuits making their way through the federal courts. The timeline for proposing a revised regulation in accordance with the new Executive Order is unknown at this time.