Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule

I can’t help but chuckle at the hyperbole in the title of this order. Does the “Rule of Law” really need to be “restored”? Will this rather narrow executive order restore “Federalism and Economic Growth”? This reads a lot like one of his speeches full of grandiose promises.

Essentially this order gives direction to the EPA Secretary and Assistant Secretary of the Army for Civil Works to revise or replace the final “Clean Water Rule: Definition of ‘Waters of the United States,”. It also directs them to communicate with the Attorney General regarding current litigation related to the rule.

In addition, the order requests consideration of the definition of “navigable waters” to be brought in line with an opinion of Justice Antonin Scalia in the decision of Rapanos v. United States, 547 U.S. 715 (2006).

I attempted to skim the lengthy opinion by Scalia (joined by Roberts, Alito and Thomas) to understand the point of this being cited in this order. It appears to be a return to earlier understanding of the meaning of navigable water as “waters that are actually navigable”. The Army Corps of Engineers had expanded the definition to include other waters including swamp lands, etc. Definitions are important in law and it makes sense to revert to the actually navigable definition, from my point of view, because it is the common reading of the language. What complicates matters is the original Clean Water Act of 1972 used a different term – the Nations waters – and under that term, the Army Corps understanding of waters actually makes good sense as well.

Ultimately, this order means the dismantling of environmental protections is beginning as promised.

Executive Order posted February 28,2017.

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