Follows AGC’s Recommend Path
Following AGC’s recommendation to the presidential transition team in December, President Trump issued an Executive Order on Feb. 28 that begins the process of unwinding the “Waters of the United States” (WOTUS) rule.  Also in line with AGC’s recommendation, the Order calls for a new “review” of the WOTUS rule, stating that for any revised proposed rule, the EPA and Corps shall consider interpreting the term ‘navigable waters’ in a manner consistent with the opinion of the late Justice Antonin Scalia in the 2007 Supreme Court case, Rapanos v. United States. In keeping with the Executive Order, EPA and the Corps have issued a notice of intent to review/revise the WOTUS rule.
The Executive Order in and of itself does not remove the WOTUS rule from the books. Rather it merely directs the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers — who issued the rule in 2015 — to begin the lengthy and complex regulatory process necessary to rescind or revise the rule. That process will take time, as it is subject to the same notice and comment rulemaking process that the rule underwent when it was written.  It will also be subject to legal challenge by environmental groups, which may use the government reports and documentation that the agencies used to justify the rule as ammunition against any changes.
The Order also directs the agencies to notify the U.S. Attorney General about the pending review of the WOTUS rule so he may take any such measures as he deems appropriate concerning any pending litigation related to the rule. But at this point, it remains unclear how this Order will impact current litigation. In the midst of this uncertainty, the Corps continues to use the 1986 regulations and applicable jurisdictional guidance (status quo as it existed before the new rule) in making jurisdictional determinations or taking other actions based on the definition of WOTUS.
AGC has been advocating on behalf of its members on this issue since the beginning. AGC submitted four sets of comments on the agencies’ 2014 proposed rule on the scope of their jurisdiction.  The agencies finalized a modestly improved rule in May 2015 and scheduled it to take effect in August 2015.  Many states and others challenged the rule in court.  The U.S. Court of Appeals for the Sixth Circuit has at least temporarily blocked the agencies’ implementation of the rule.  There is no deadline for the Sixth Circuit to make a final decision. AGC has spoken about the implementation of the 2015 rule with EPA and the Corps, including its potential impact on Clean Water Act permitting.  For information on the WOTUS rule and where it generally stands, click here and here, respectively.
For more information, contact Leah Pilconis at [email protected] or (703) 837-5332.