February 28, 2017

President Trump issued an executive order directing agencies to review the “Waters of the United States” rule. On February 28 the order directed the U.S. Environmental Protection Agency and the Army Corps of Engineers to “review and rescind or revise” the regulation. The rule, which was issued in June 2015, clarifies which waterways are under the jurisdiction of federal regulators under the Clean Water Act. The rule has never come into effect because of litigation surrounding it.

The order directs federal agencies to consider shifting guidance for the rule from a 2006 opinion by Supreme Court Justice Anthony Kennedy in Rapanos v. United States to that of former Supreme Court Justice Antonin Scalia’s. In that case, with a 4-1-4 vote, Justice Kennedy’s vote was the stand-alone, while Scalia’s spoke for the four conservative justices.

The ultimate fate of the Waters of the United States Rule remains uncertain.

Sources: White House Office of the Press Secretary, the Environmental Protection Agency, Justice.gov