United States: Trump Administration Working To Repeal And Replace The Clean Water Rule

Last Updated: June 8 2017
Article by Dietrich Hoefner

Wetlands in front of the Lincoln Memorial, 1917, before construction of the reflecting pool

On February 28, 2017, President Trump signed an executive order directing EPA to review the "Waters of the United States Rule" (the "WOTUS" Rule). Exec. Order No. 13778, 82 Fed. Reg. 12497 (Feb. 28, 2017). The order directed EPA and the Army Corps of Engineers (the "Agencies") to "rescind or revise" the final WOTUS Rule promulgated by the Obama administration defining the jurisdictional scope of waters of the United States. See 80 Fed. Reg. 37054 (June 29, 2015); see also Vol. XLVIII, No. 2 of this Newsletter (describing the WOTUS Rule).

The executive order directed the Agencies to review the WOTUS Rule for consistency with the following policy statement: "It is in the national interest to ensure that the Nation's navigable waters are 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." 82 Fed. Reg. 12497. The order further directed the Agencies 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)." This direction is in contrast to the current WOTUS rule, which largely adopts the test explained in Justice Kennedy's concurrence in Rapanos.

On March 6, 2017, the Agencies announced that they will review and revise the WOTUS Rule accordingly. See 82 Fed. Reg. 12532. About one month later, on April 19, 2017, EPA held a "Federalism Consultation Meeting" and presented the Agencies' approach to implementing the executive order. At that meeting, EPA explained that the Agencies are planning to implement the Executive Order in two steps. They first will take action to establish the "legal status quo [ex ante]" by "recodifying the regulation that was in place prior to issuance of the Clean Water Rule." After restoring this status quo, EPA explained, the Agencies will then turn to proposing a new definition that comports with Justice Scalia's opinion in Rapanos.

Restoration of "status quo"

The first step of the process was presented by EPA as "restoring the status quo" by recodifying the pre-Obama rules, which date to 1986. As of the writing of this article, the Agencies have submitted a proposal to rescind the rule to the White House Office of Information and Regulatory Affairs, which is in the process of meeting with stakeholders and other groups about the proposal.

It is important to recognize that the state of the law prior to the Obama administration's WOTUS rule was far from settled, and that the pre-Obama definitions gave rise to considerable litigation over the scope of federal authority, including the Rapanos decision. See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985); Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001); Rapanos, 547 U.S. 715 (2006). The pre-Obama rule should be read in light of these cases, which interpret and limit the scope of federal jurisdiction.

Different options for the new WOTUS definition

In April, EPA explained several possible approaches to defining the scope of federal Clean Water Act jurisdiction consistent with Justice Scalia's opinion in Rapanos. As was explained in that opinion, waters of the United States includes "relatively permanent, standing or continuously flowing bodies of water" and "wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right." Rapanos, 547 U.S. at 742. Under this framework, the Agencies are considering two categories of waters for classification in the new rule: "relatively permanent" waters and "wetlands with a continuous surface connection" to a jurisdictional water.

EPA presented three possible approaches for defining the universe of "relatively permanent" waters. First, the rule could include perennial waters plus streams with seasonal flow. EPA noted that under current practice, seasonal flow includes streams that flow roughly three or more months per year (although what constitutes a seasonal stream may vary by region). As a second option, EPA explained that the rule could include perennial waters plus streams "with another measure of flow." This option would look to "appropriate, implementable metrics" to determine whether a seasonal or intermittent stream would qualify as "relatively permanent." Metrics could include the frequency of flow, or the extent to which a stream intersects the water table. The third option presented would be to define "relatively permanent" waters as "perennial streams only." In this case, only steams that carry flow throughout the year would qualify (with a limited exception for "extreme drought"). EPA also requested feedback on other ways it could formulate a definition for "relatively permanent" waters.

EPA also laid out three options with respect to what constitutes a wetland with a "continuous surface connection" to a jurisdictional water. The broadest definition would include waters with a surface connection, even if the connection is through a non-jurisdictional feature. It noted that current practice is to consider any wetland with a continuous surface connection to be jurisdictional, regardless of its distance from the jurisdictional water. The second approach is less inclusive and would include wetlands with "some degree of connectivity" as determined by the use of an "appropriate, implementable" metric such as distance. The third approach would be to include only wetlands that directly touch a jurisdictional water. EPA also asked for input on other approaches it might consider with respect to defining wetlands with a continuous surface connection.

The approaches laid out by EPA all appear to contemplate bright line approaches to determining jurisdiction, which stands in contrast to the Obama WOTUS rule as well as the earlier rules implementing the Clean Water Act. By relying on Justice Scalia's opinion, current administration will sidestep the "significant nexus" determination that was to be made on a case-by-case basis for some waters under the Obama WOTUS rule. Instead, at least based on what has been presented so far, jurisdictional determinations under the new rule will be based exclusively on the factors discussed above, leaving much less room for case-by-case analysis.

The Agencies are continuing to do outreach with respect to the new rule. They sent a letter to state governors in May requesting input on what bodies of water should be subject to federal jurisdiction as "navigable waters." The letter explains that the Agencies "want to clearly understand what definition will work best for your state as we develop a new federal definition of 'waters of the U.S.' consistent with the Scalia opinion." Recognizing that the new rule is all but certain to reduce the scope of federal jurisdiction, the letter also asks states how they "might respond to a reduced scope of federal jurisdiction under the Clean Water Act."

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Dietrich Hoefner
In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.