By Jodi Juskie, Joshua A. Bloom, and Adam J. Regele “Repeal and replace” is not
limited to the congressional debate on healthcare. While it does
not enjoy the same impassioned debate, the waters of the
United States Rule under the Clean Water Act (CWA), and the
jurisdiction of the Environmental Protection Agency (EPA) and
Army Corps of Engineers, is up for substantive change. And like
the political confrontations over the Affordable Care Act, there
is not much clarity on what a redefined “waters of the United
States” might look like. The only certainty is that the decisions of
the Obama administration will likely soon disappear.
■ ■ Defect to define. The definition of the 2015 “waters of the United States” rule
establishes the scope of authority under the US Clean Water Act.
■ ■ Kennedy’s opinion. In Rapanos v. United States, US Supreme Court Justice Anthony
Kennedy established that non-negative-in-fact waters could be regulated if there was a
significant nexus between those waters and a traditionally navigable waterway.
■ ■ The order. US President Donald Trump issued an executive order declaring that the Clean Water Act was “one of
the worst examples of federal regulation” — instructing that agencies interpret the term “navigable waters” in a
manner consistent with the opinion of the late Supreme Court Justice Antonin Scalia in Rapanos v. United States.
■ ■ The proposition. The proposed repeal-and-replace rule would recodify the regulatory text that was
in place prior to the Clean Water Act, while noting that repealing the 2015 rule would leave a
definition of “waters of the United States” that is consistent with the Supreme Court decisions.