President Trump Executive Order Takes Aim at WOTUS

Last week, President Trump issued an Executive Order directing the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) to review the "Waters of the US rule" or "WOTUS" as it’s known. The WOTUS rule aims to determine what can be considered under the Clean Water Act a "water of the US" and thus under the jurisdiction of the federal government; which amounts to a very large jurisdictional expansion. Currently, the WOTUS rule is stayed nationwide while multiple legal challenges to the rule work their way through the court system.

Specifically, the order requires both EPA and the Corps to review the rule to determine if "navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution." After the agencies’ reviews are completed, the agencies are directed to "publish for notice and comment a proposed rule rescinding or revising the rule." As well, the agencies are directed to inform the U.S. Attorney General (AG) of their actions so the AG can inform the various courts about the developments that may impact current litigation on the rule.

While this latest development is welcome news to industry and NRMCA specifically, the order does not immediately vacate the rule or ensure the rule is rescinded. The order merely starts that process for both the regulatory and legal pieces to move toward repeal or significant change, all of which could likely be a lengthy process. NRMCA looks forward to working with both agencies toward the rule’s ultimate repeal.