Trump Repeal and Replace Plan

Trump's Plans

Since the split Supreme Court Ruling in the 2006 Rapanos case, there has been confusion over what constitutes a "navigable water" subject to the protections of the Clean Water Act. Agencies issued guidance in 2008 that was based on the more protective of the two Rapanos rulings: that any waters, including isolated ponds and wetlands, that possessed a "significant nexus" with navigable waterways would be subject to the CWA's protections. 

The Obama administration began drafting a rulemaking that would codify this interpretation, and in 2015, the EPA issued a final rulemaking clarifying how the Agency would classify a water of the U.S. based upon the Court’s “significant nexus” requirement. However, industry sued the Agency and got a preliminary injunction on the implementation of the rule while its merits were being litigated; SCOTUS held that all challenges to the Rule must be heard in district courts rather than appellate courts.

Trump Signing

On February 28, 2017, President Trump signed the “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” In it, he ordered the Corps and EPA to review the Clean Water Rule, and stated that any future rulemaking “shall consider interpreting the term ‘navigable waters’ … in a manner consistent with the opinion of Justice Antonin Scalia” in Rapanos--despite this opinion not being the official Court opinion or being binding law. Implementation of the Scalia interpretation would remove CWA coverage for close to 90% of all wetlands within the nation.

To that end, EPA issued two documents under instructions from Administrator Pruitt: 1) Definition of “Waters of the United States” – Recodification of Pre-existing Rules; and 2) an Economic Analysis for the Proposed Definition of “Waters of the United States” – Recodification of Pre-existing Rules. The proposed rule rescinds the 2015 Clean Water Rule that was stayed, and is the first step in a two-step process to repeal and replace the Clean Water Rule with a new regulation in line with the Scalia definition.