On Feb. 28, President Donald Trump signed an Executive Order titled, “Restoring the rule of law, federalism and economic growth by reviewing the ‘Waters of the United States’ Rule.” The action was applauded by the Realtors Land Institute (RLI).
“RLI looks forward to working with the [Trump] Administration, EPA Administrator Scott Pruitt and the Assistant Secretary of the Army for Civil Works, when approved, to develop common-sense solutions to protecting our nation's water resources while balancing the interests of land real estate and communities nationwide,” RLI National President Brandon Rogillo said in a statement.
The Waters of the United States (WOTUS) rule, which was published by the Environmental Protection Agency and Department of the Army, defines the scope of waters protected under the Clean Water Act (CWA). According to the final rule, its purpose is to ensure public health and protection for the nation’s aquatic resources while increasing the CWA’s program predictability and consistency.
“This final rule does not establish any regulatory requirements. Instead, it is a definitional rule that clarifies the scope of ‘waters of the United States’ consistent with the Clean Water Act (CWA), Supreme Court precedent and science,” the rule states.
Those Supreme Court cases include U.S. v. Riverside Bayview Homes, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC) and Rapanos v. United States.
RLI stated that the Executive Order “begins to unwind” WOTUS.
The Executive Order requires the EPA and the assistant secretary of the U.S. Army Corps. of Engineer’s Army for Civil Work to review WOTHUS for consistency with the order’s policy, which is to ensure that the nation’s navigable waters are kept free from pollution while promoting economic growth, minimizing regulatory uncertainty.
The EPA and Army Corps. also are required to publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with the Clean Water Act. The Executive Order requires that the agencies to interpret “navigable waters” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006) (“the waters of the United States, including the territorial seas”).
RLI has advocated for the rule to be withdrawn to “eliminate the need for costly and time-consuming permits on waters that were previously unregulated by the federal government.”