Environmental and Energy Law Blog

Friday, March 31, 2017

Trump Rescinds Controversial Water Rule

One of the most controversial environmental regulations enacted during the Obama administration was the EPA and Army Corps of Engineer’s “Clean Water Rule: Definition of 'Waters of the United States’”. The WOTUS rule, as it was commonly known, greatly expanded the government’s control over land that could be even remotely described as a stream or wetland. Now, President Trump has issued an executive order directing the EPA and Army Corps to review and rescind or revise the rule.

A Long and Complex History

Ever since the Clean Water Act became law in 1972 there has been debate about exactly what water is under the government’s control. The law is supposed to cover all the “navigable waters” of the nation, but that term has been in dispute since even before the Clean Water Act was adopted.

The issue has been to the United States Supreme Court twice, and the rulings in both those cases made the definition, and thus the reach of the law, as clear as mud. The last time it was at the Supreme Court, in Rapanos v. United States, 547 U.S. 715 (2006), the court issued a 4-4-1 ruling with Justice Kennedy authoring a concurring option that is basically the basis of the current rule.


The WOTUS rule was supposed to offer clarity and predictability, but so far it has only spawned a lot of litigation. In fact, it has not been implemented at all because of all the lawsuits that were filed.  

Litigants suggest the rule expanded the power of the federal government in ways that are completely improper. For example, land that could be regulated as a wetland under the WOTUS rule may only be wet for a brief period during the rainy season. Landowners, especially farmers, have objected to this, claiming that the WOTUS rules apply much too broadly.

In his remarks at the executive order signing, Trump suggested homeowners were being fined for filling in puddles on their property, and mentioned a rancher in Wyoming who was being fined $37,000 a day for digging a small watering hole for his cattle on his land.

What’s Next?

Trump’s executive order directs the EPA and the Army Corps of Engineers to review the WOTUS rue to “ensure that the Nation's 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.”

It also suggests that the agencies should adopt a definition of “navigable waters” that is “consistent with the opinion of Justice Antonin Scalia in Rapanos.”

This means regulated entities will have a second bite at the apple because any changes to the existing rule will have to go through the federal rulemaking process. Anyone who thinks they will be impacted by the WOTUS rule should consider submitting comments when the opportunity arises.

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