The Executive Order On The WOTUS Rule: Will It Really Reduce Regulatory Uncertainty?

Author:Mr Seth Jaffe
Profession:Foley Hoag LLP

On Tuesday, President Trump issued another executive order on the environment, this time directing EPA to revisit the EPA rule defining Waters of the United States under the Clean Water Act. It's a curious order, for a number of reasons.

First, Section 1 of the EO states as "Policy" that "minimizing regulatory uncertainty" is in the national interest. Well, the purpose of the WOTUS rule was pretty much to reduce the regulatory uncertainty surrounding the definition of WOTUS. The rule may not have succeeded perfectly, but does anyone really think that the purpose of the order is to reduce uncertainty? It's pretty clearly intended simply to reduce jurisdiction.

Second, in revisiting the definition of WOTUS, the EO states that EPA:

Shall consider interpreting the term "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.

I do love that "shall consider" language. Raise your hand if you think that EPA will consider, but then reject, relying on Scalia's approach. More to the point, anyone reading this blog probably already knows that Scalia's opinion did not command a majority...

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