President Trump signed an Executive Order requiring EPA and the U.S. Army Corps of Engineers to review the final “Clean Water Rule,” also known as the Waters of the United States (WOTUS) Rule. The Order requires that the review ensure that the WOTUS Rule is consistent with a new policy to keep the Nation’s navigable waters free from pollution “while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles played by Congress and the States under the Constitution.” Although implementation of the Rule was stayed by the U.S. Court of Appeals for the Sixth Circuit pending further court review, the Executive Order also requires EPA and the Corps to review all orders, rules, regulations, guidelines, or policies implementing the Rule and to revise or rescind such rules consistent with the Executive Order.
Revising or rescinding the Rule administratively is subject to the same notice and comment rulemaking procedures that EPA and the Corps followed when adopting the Rule, so the Executive Order is the first step in a lengthier 12-18 month administrative process. In revising the Rule, the Executive Order requires EPA and the Corps to interpret “navigable waters” consistent with the late Justice Scalia’s plurality opinion in Rapanos v. U.S., in which Justice Scalia took the view that “navigable waters” meant waters that are “relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] … oceans, rivers, [and] lakes.’” Rapanos v. U.S., 547 U.S. 715, 719 (2006) (citing Webster’s Dictionary).
Given this charge, EPA and the Corps are likely to craft a much more narrowly tailored rule than the existing Rule which relies largely on hydrologic connection or “significant nexus” to waters of the United States to allow EPA and the Corps to assert jurisdiction over a broader scope of waters. The Order also requires Administrator Pruitt and the Assistant Secretary to the Corps to notify the Attorney General that the Rule is under review so that the Attorney General “as he deems appropriate” may inform the many courts with pending appeals of the rulemaking, including the Sixth Circuit and the United States Supreme Court.
As finalized in 2015, the WOTUS Rule would have affected pipeline operations in several ways, particularly with respect to construction, repair, replacement and even routine maintenance in or near the expanded definition of “waters of the United States.” For liquid pipelines, changes could have potentially required reexamination of determinations of high consequence areas, as well as incident impact and spread release computations, under the integrity management program (IMP) regulations established by 49 C.F.R. Part 195. The rule would have also likely resulted in an increased number of releases subject to reporting obligations for releases to waters and the need to revisit the scope and applicability of Part 194 response plans to pipeline systems and EPA Spill Prevention Control and Countermeasure regulations.
A more narrowly tailored rule should greatly lessen the impact any revisions to pipeline owners and operators. The Executive Order is available here.