On February 28, 2017, President Donald Trump signed an executive order charging Scott Pruitt, Administrator of the Environmental Protection Agency (EPA), with revising or rescinding the 2015 Clean Water Rule: Definition of "Waters of the United States." The rule, aimed at clarifying the jurisdiction of the Clean Water Act (CWA), has been controversial since its enactment and was immediately challenged in court.

The US Army Corp of Engineers and EPA initially issued the proposed Clean Water Rule on April 21, 2014, to address ambiguity over the definition of "Waters of the United States” under the CWA. The final rule was promulgated on June 29, 2015 and went into effect on August 28, 2015. The rule was intended to clarify what waterways were under the jurisdiction of the EPA, triggering federal regulatory involvement when those waters were at risk of being polluted.

Since the rule was finalized, strong opposition came from farmers, ranchers, construction developers, and energy sector companies that claimed that the new rule unlawfully expanded the jurisdiction of the EPA and the Army Corps beyond the scope of their statutory authority. These groups, led by the American Farm Bureau Federation, say the rule limits economic growth and infringes on property owner's rights, particularly those of farmers who may find themselves having to apply for federal permits to use fertilizer on their land.

On October 9, 2015, the US Court of Appeals for the Sixth Circuit issued a nationwide stay against the enforcement of the Clean Water Rule.

President Trump's order also directs Attorney General Jeff Sessions to review the judicial challenges to rule and ask the court to keep the stay in place until new regulations are released.

While a replacement Clean Water Rule might take several years to fully develop and implement, the executive order signals the beginning of the Trump administration's plan to limit the scope and breadth of the EPA's authority. President Trump is expected to sign additional executive orders to undo former President Obama's 2015 Clean Power Plan, which aimed, among other things, to limit greenhouse gas emissions from coal power plants.

For additional information on the Clean Water Act, see Practice Note, Stormwater Management: Project and Facility Permits Under the Clean Water Act, and for more information on other environmental law matters, see: