The first step in repealing the onerous WOTUS rule is set to occur today. A senior White House official tells our Washington staff President Donald Trump will sign an executive order today that would begin the process of overturning the Clean Water Act (CWA), known as the WOTUS rule. (Note: President Trump signed the Executive Order at about 1:30 pm CT today.)
The executive order will instruct the Environmental Protection Agency and Army Corps of Engineers to review and reconsider the rule, the official said. It will also instruct these agencies to go to the Attorney General and the U.S. Court of Appeals for the Sixth Circuit, where the rule is stayed, and take appropriate steps to hold that case in abeyance while the evaluation occurs, the official said. The order also asks the EPA and Army Corps to consider former Justice Antonin Scalia's interpretation of navigable waters that he issued in the Supreme Court's Rapanos v. U.S. case in 2006, the official said.
For those who have followed the development of this egregious trampling of property rights by the federal government, the instruction to follow Scalia's interpretation is extremely significant. It was Scalia's legal interpretation that carried the day in favor of landowners in the historic Rapanos v. U.S. case in 2006. It stands as the controlling opinion. But Justice Anthony Kennedy, who joined with the majority in ruling against the U.S. Army Corps of Engineers, added an additional rumination in which he introduced the concept of "significant nexus." His writing on that subject was merely a discussion and had no force of law. But the property rights abusers in the Obama EPA saw it as a clear demand that the CWA needed "clarification." And that "clarification" turned into the horrific WOTUS rule.
Getting that rule out of the Federal Register and into the trash heap of government overreach will be a long, arduous process. But the key first steps have begun and they have momentum behind them to see the process through to completion.