The first rule sent by the Trump Administration’s EPA to the Office of Management and Budget for review is the proposed repeal of the Obama EPA’s “Waters of the U.S.” jurisdiction rule under the Clean Water Act. The proposed repeal is the first step in the process of rewriting the rule to narrow its interpretation of the CWA’s jurisdiction. The proposed rule, “Definition of the ‘Waters of the United States’ — Recodification of Preexisting Rules” was sent to OMB on May 2.
OMB’s website states that the proposed rule is not “economically significant”, an effort to avoid the application of President Trump’s Executive Order requiring the repeal of 2 existing rules for every new proposed rule. Repeal of the WOTUS rule would restore the applicability of a 2008 guidance that indicates that any water that satisfies either the test set forth by Justice Scalia in Rapanos v. U.S., or the more expansive test set forth by Justice Kennedy in that same case, is subject to the Clean Water Act—the approach that the Obama WOTUS rule sought to clarify.
For more information on whether waters satisfy the Clean Water Act’s jurisdiction test as interpreted by EPA, contact Steve O’Day.