Trump signed an executive order instructing the EPA and the Army Corps of Engineers to “rescind or revise” the rules so they can protect navigable waters while still “minimizing regulatory uncertainty.”

Cooper david
Managing Editor / Progressive Cattle

Trump’s order followed months of sharp criticism he made of the WOTUS rules during the presidential campaign. Tuesday’s executive order was applauded by agricultural groups that argued WOTUS would have been a regulatory minefield for private land users.

In the ceremony, Trump called the rule “one of the worst examples of federal regulation, and it has truly run amok, and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land. It's prohibiting them from being allowed to do what they're supposed to be doing. It's been a disaster.”

Trump specified one case involving a Wyoming rancher levied a $37,000 a day fine by the EPA because he dug a watering hole for his cattle. “These abuses were, and are, why such incredible opposition to this rule from the hundreds of organizations took place in all 50 states,” Trump said.

“With today’s executive order, I’m directing the EPA to take action, paving the way for the elimination of this very destructive and horrible rule.”


Read more: President Trump's full remarks can be found here.

Attending the signing were a number of bipartisan members of Congress, most of them from rural states opposed to the WOTUS rules. Also in attendance were American Farm Bureau President Zippy Duvall and National Association of Counties Executive Director Matt Chase.

The WOTUS rules were issued under Obama but had actually never been enforced due to court challenges made by more than two dozen states. 

Environmentalists and wildlife groups supporting the WOTUS rules say the expanded power would protect smaller waterways that feed into larger downstream waters, as well as 20 million acres of wetlands with no connection to other larger waterways.

Craig Uden, president of the National Cattlemen’s Beef Association, praised Trump for his regulatory action. “This extremely flawed rule would force ranchers and feedlot operators to get permits or risk excessive federal penalties despite being miles away from any navigable water,” Uden said in a statement. “It would be one of the largest federal land grabs and private property infringements in American history, and the president should be applauded for making EPA and the Corps reconsider this debacle. Ultimately, this rule should be taken out behind the barn and put out of its misery.”

Making that happen may not happen quickly. A new review from the agencies could require years. If a new rule is proposed, the rules would go through additional public comment periods. That process would prolong the rules’ enactment by years.

Furthermore, the rules are currently stuck in the courts with the 6th Circuit Court of Appeals in Cincinnati and in the Supreme Court. The Circuit Court was expected to argue the merits of WOTUS. The Supreme Court case, Manufacturers v. Department of Defense, was expected to decide this spring whether challenges to WOTUS can be heard in the federal circuit courts or the federal district courts. That case was not expected to decide the actual merits of the WOTUS case. 

All of those decisions are in flux, however, after Trump’s order, which instructs the attorney general, upon receiving the agencies’ new review, to determine how far to take the case. 

Trump’s signed order also instructs the agencies to apply the definition of “navigable waters” used by Justice Antonin Scalia in the 2006 Rapanos decision. In that case, Scalia limited the scope of navigable waters to “only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams, … oceans, rivers (and) lakes.’ … The phrase does not include channels through which water lows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”  end mark

David Cooper