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Is “Repeal and Replace” on the Horizon for the Clean Water Act?

“Repeal and replace” is not limited to the congressional debate on healthcare. While it has not received the wall-to-wall press coverage that the healthcare debate has received, the Trump Administration’s proposal to rescind the Clean Water Act “waters of the United States” Rule that was finalized during the Obama Administration has similarly inflamed passions on all sides of the issue. The prospective change in the definition of “waters of the United States” would have a significant impact on the scope of what waters, or water features, may be regulated under the Clean Water Act.

The Environmental Protection Agency and the Army Corps of Engineers have proposed a “two-step” rulemaking process that would rescind the Rule and reinstate the prior definition of “waters of the United States,” and then further revise the definition. That Rule, which establishes the scope of authority under the federal Clean Water Act, has been the subject of intense controversy, and the Sixth Circuit issued a nationwide stay of the Rule pending the outcome of current litigation. On top of that came President Trump’s executive order signaling the Administration’s opposition to the Rule and ordering EPA to rescind the Rule. Now, the agencies propose to employ the two-step “repeal and replace” approach that would result in yet another definition of “waters of the United States.” Diametrically opposed factions will litigate this issue and the Supreme Court will once again be charged with determining the scope of the Clean Water Act and the boundaries of “waters of the United States.” If recent history is any guide, any Supreme Court decision will not likely be the final word.

Please click here to read an article explaining key elements of the Clean Water Act, the litigated history of the definition of “waters of the United States” and the potential impact of changes to the Clean Water Act. The article, published in ACC Docket, is co-authored by Jodi Juskie, Managing Counsel for Keysight Technologies, Inc. and Joshua Bloom, Principal at Meyers Nave.