Will executive order put an end to WOTUS woes?

Therese Dunphy

April 26, 2017

When President Trump issued an executive order instructing the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to review and reconsider the Waters of the United States (WOTUS) rule, aggregate producers almost assuredly let out a sigh of relief.

From its inception, the rule has been a stinker. Many recognize it for what it is: an attempt by the EPA to massively expand its jurisdiction and impose layers of regulations on operators, farmers, and numerous other landowners.

“The EPA’s so-called ‘Waters of the United States’ rule is one of the worst examples of federal regulations, and it has truly run amok,” President Trump said before signing the executive order. “With today’s executive order, I’m directing the EPA to take action, paving the way for the elimination of this very destructive and horrible rule.”

The National Stone, Sand & Gravel Association (NSSGA) and other groups took legal action to fight the rule when it was promulgated in 2015. The hotly contested rule has since been stayed by the U.S. Court of Appeals for the Sixth Circuit.

But, while it is not being enforced, the rule cannot be dissolved simply via the executive order. The order simply starts the process to unravel it, which may very well begin with the term ‘navigable waters.’ Definitions regarding ‘waters of the U.S.’ and ‘navigable waters’ have been the source of lawsuits for nearly two decades. In 2001 and 2006, the Supreme Court rejected EPA and Corps definitions as being too expansive.

The executive order specifically directs the agencies to consider adopting a new or revised rule based on the definition “in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”

In his opinion, Justice Scalia said the Corps’ attempt to expand the definition “has stretched the term ‘waters of the United States’ beyond parody. The plain language of the statute (the Clean Water Act) does not authorize this ‘Land is Waters’ approach to federal jurisdiction.”

The executive order’s use of Justice Scalia’s opinion, rather than the controlling opinion written by Justice Anthony Kennedy, offers a sense of where the administration wants a new or revised rule to go. It seems likely that any revisions would be to the industry’s benefit while not pulling back so far from precedents as to provoke an ongoing battle with future administrations.

Given the vague nature of terms that have plagued the Clean Water Act since its inception, we can hope that both regulatory bodies, such as EPA and the Corps, and producers will finally have guidelines that are more well defined and suitable. With that goal in mind, this iteration of the rulemaking process may very well be cause for cautious celebration.

 

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