More than a month into his presidency, Donald Trump has delivered on an action that many thought would be among his first. On Tuesday, Trump signed an executive order calling on the Environmental Protection Agency and the Army Corps of Engineers to repeal or revise the Waters of the U.S. rule.
WOTUS came out of a May 2015 effort by the EPA to formally establish what smaller waterways fell under the scope of the 1972 Clean Water Act. Until then, the definition had been left to authorities in each locale to determine. WOTUS seeks to clarify which smaller waterways and wetlands feed those larger bodies and must be protected.
- The New York Times, which previewed the order on Monday, notes that although the executive action is wide-ranging, it is limited in its impact. The order prompts the EPA, now headed by Trump pick Scott Pruitt, to begin the multi-year process of examining and, likely, revising the rule.
Construction industry groups immediately pushed back against WOTUS, saying that the EPA had overreached and that it still didn’t clearly define what waterways fell within its scope. By the end of June 2015, multiple states had filed legal challenges against it, according to The Hill.
In August 2015, implementation began in all but 13 U.S. states after a federal judge in North Dakota decided that lawsuits filed by those states were likely to win their cases on the grounds that they challenged the EPA’s jurisdiction over very small water features like streams and ditches.
Two months later, in October 2015, the Sixth U.S. Circuit Court of Appeals issued a temporary stay against WOTUS. From there, the House of Representatives and Senate passed a resolution overturning the rule in its entirety, which then-President Barack Obama vetoed in January 2016.
WOTUS came into the spotlight again in May 2016, when the Supreme Court ruled in U.S. Army Corps of Engineers vs. Hawkes Co. Inc. that businesses can dispute what wetlands and streams fall under the federal government’s jurisdiction. To the delight of many in the construction industry, the ruling took away a mandatory permitting process that had the potential for a costly, years-long review process.
As Construction Dive reported in June, the SCOTUS ruling changed the tide for builders and developers seeking to challenge the WOTUS status of their lands, allowing them to begin litigation before permitting is complete. Industry observers hope that more legal challenges to the act will establish case law that will apply constraints to its influence.
Previously, builders cited WOTUS as adding cost and time to projects due to the regulatory approvals process, and many were critical of the federal requirement on local-scale projects. The construction industry is joined by utilities, mining companies and agriculture in its opposition to the rule.
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