President Trump Signs Executive Order on WOTUS

President Trump signed an executive order yesterday directing the U.S. Army Corps of Engineers and the Environmental Protection Agency to “review and reconsider” the Obama administration’s controversial “Waters of the U.S.” (WOTUS) rule under the Clean Water Act (CWA).

The rule, finalized in May of 2015, was intended to define the term “waters of the United States” as used in the CWA. The definition of this term determines the scope of federal authority to regulate water and when states, local governments, and others must seek federal permits to develop land because it contains WOTUS. States and local governments have objected to numerous aspects of the definition as too broad.    

The U.S. Court of Appeals for the Sixth Circuit issued a nationwide stay of the rule in 2015. EPA Administrator Scott Pruitt filed litigation against the regulation when he was the Oklahoma Attorney General. The rule was challenged in court by at least 30 states.

Administrator Pruitt lauded yesterday’s action and vowed to quickly withdraw the rule. Speaking to the American Farm Bureau, he portrayed the rule as a symbol of the previous administration’s executive overreach and stated, “We’ve already been setting the standard that we are going to restore cooperative federalism.  We are going to go back to the states and say we want you to be our partners, not our adversaries.  We believe the people at the state level care about the water they drink and the air they breathe. And they want to make sure they take care of their most important asset, the natural resources of their state.”

Under the order, the EPA and Army Corps, which jointly implement the CWA, are directed to review the final rule and publish for notice and comment a proposed rule rescinding or revising the rule as appropriate and consistent with law. The executive order also directs the Administrator and Assistant Secretary of the Army for Civil Works to consider the term “navigable waters” as used in the CWA in a manner consistent with Justice Antonin Scalia’s opinion in Rapanos v. United States, which was the last time the Supreme Court addressed the question of jurisdiction under the CWA.