Waters of the United States Rule

On February 28, 2017, President Trump issued an Executive Order on “Restoring the Rule of  Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule (WOTUS).”

Another effort to roll back Obama-era environmental protections, the order directs the EPA and Army Corps of Engineers to revise or repeal WOTUS, which applies to approximately 60% of bodies of water in the US. The order thus amounts to an attempt to redefine, and thereby shrink, the federal government’s permitting jurisdiction under the Clean Water Act. Reduced federal jurisdiction would result in fewer projects that need permits; a requirement for fewer permits would, in turn, result in fewer Section 106 reviews.

Although President Trump has offered few clues about the path his administration will take to eliminate or rewrite the rule, the process will not be quick. Key administrative positions at both the EPA and Army Corps of Engineers remain unfilled, meaning that major players in what will be a convoluted and drawn-out review process are still missing. Moreover, rewriting or repealing WOTUS would require a rulemaking of its own, which requires Federal Register notice and a comment period – a process that can take up to two years.