President Takes Executive Action to Undo WOTUS Rule
March 3, 2017

On Tuesday, President Trump signed an executive order directing the Environmental Protection Agency and the Army Corps of Engineers to review the controversial "waters of the United States" rule and make a decision to either rescind or revise the rule. The final rule, published in early 2015, was widely seen as a land grab giving the federal government jurisdiction over millions of acres of streams, rivers, dry washes and dugouts.

While the executive order does not immediately withdraw the rule, it gives the agencies clear direction to revise the rule consistent with the goals of protecting navigable waters while promoting economic growth and ensuring regulatory certainty, or rescind the rule if that cannot be achieved. During review by the agencies, the WOTUS rule remains under a nationwide judicial stay, barring EPA or the Corps from enforcing any part of the rule.

Notably, the President's executive order also calls on the agencies to utilize the traditional definition of "navigable waters" consistent with the late Justice Antonin Scalia's opinion in the Rapanos Supreme Court case in any future rulemaking. This action effectively limits future rules under the Clean Water to follow Justice Anthony Kennedy's "significant nexus" test, requiring a showing that waters are in fact navigable or possess a significant nexus to navigable waters in order to be jurisdictional.

Agriculture, private landowners, construction and mining stakeholders have called the action a victory in ensuring regulatory certainty for all land users. However, the day after the order was signed, the Environmental Working Group released their analysis claiming change to the rule would put the drinking water of 117 million Americans at risk, ignoring the fact that these waters and wetlands not federally jurisdictional are regulated by the states.