On April 3, 2017, the United States Supreme Court denied a request from the Trump Administration to place a hold on the pending litigation in which the EPA’s and the U.S. Army Corps of Engineer’s Clean Water Rule is being challenged.  The basis for the Trump Administration’s request was the Executive Order signed on February 28, 2017, titled “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”  That executive order calls for the EPA, the Corps, and other executive department and agency heads to “. . . rescind or revise, or publish for notice and comment proposed rules rescinding and revising” the Clean Water Rule.  The order further directs the agencies to consider the definition proposed by Justice Scalia in Rapanos v. United States, 547 U.S. 715 (2006).

The Clean Water Rule defines the jurisdiction of the Clean Water Act.  Many challenges have been filed in U.S. district courts and U.S. Circuit Courts of Appeals.  The threshold procedural issue is whether jurisdiction over hearing the challenges to the rule lies in the district courts or in the courts of appeals.  The challenges that were filed in the courts of appeals were consolidated in the Sixth Circuit, which ruled in February 2016 that it has jurisdiction to hear them.  Lawsuits filed in federal district courts are also pending.  In the meantime enforcement of the Clean Water Rule remains under a stay pending these various challenges. 

Against this background the Trump Administration asked the Supreme Court to place a hold on the underlying litigation in light of its February 28, 2017, Executive Order, but the Court refused to do so.  It appears that the Clean Water Rule will eventually be decided by the Supreme Court.