In April 2015, The Heritage Foundation posted an article on the “Waters of the United States” (WOTUS) rule.
The article includes the following:
The proposed rule would assert jurisdiction over numerous types of waters, including “tributaries,” “adjacent waters,” and “other waters.” The definition for “tributaries” covers any water with a bed, banks, and ordinary high water mark that contributes flow, either directly or through another water, to a traditional navigable water, interstate water, territorial sea, or impoundment. This definition is even broader than it sounds. As explained by the American Farm Bureau Foundation:
The agencies use the words “bed” and “bank” and “ordinary high water mark,” which sound like parts of a river or stream. In reality, though, the agencies’ explanation makes clear that those words just mean some kind of channel (land with higher elevation on each side of land with a lower elevation) plus any physical marks left by flowing water.
A broad interpretation of this law means that any mud puddle that forms in your yard in the spring has the potential of being under government control. The could impact your ability to build, landscape, or use your property in other ways.
On February 27, the White House issued the following statement about the Waters of the United States rule:
Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule
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RESTORING THE RULE OF LAW, FEDERALISM, AND ECONOMIC GROWTH
BY REVIEWING THE “WATERS OF THE UNITED STATES” RULE
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Policy. It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.
Sec. 2. Review of the Waters of the United States Rule. (a) The Administrator of the Environmental Protection Agency (Administrator) and the Assistant Secretary of the Army for Civil Works (Assistant Secretary) shall review the final rule entitled “Clean Water Rule: Definition of ‘Waters of the United States,'” 80 Fed. Reg. 37054 (June 29, 2015), for consistency with the policy set forth in section 1 of this order and publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with law.
(b) The Administrator, the Assistant Secretary, and the heads of all executive departments and agencies shall review all orders, rules, regulations, guidelines, or policies implementing or enforcing the final rule listed in subsection (a) of this section for consistency with the policy set forth in section 1 of this order and shall rescind or revise, or publish for notice and comment proposed rules rescinding or revising, those issuances, as appropriate and consistent with law and with any changes made as a result of a rulemaking proceeding undertaken pursuant to subsection (a) of this section.
(c) With respect to any litigation before the Federal courts related to the final rule listed in subsection (a) of this section, the Administrator and the Assistant Secretary shall promptly notify the Attorney General of the pending review under subsection (b) of this section so that the Attorney General may, as he deems appropriate, inform any court of such review and take such measures as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule.
Sec. 3. Definition of “Navigable Waters” in Future Rulemaking. In connection with the proposed rule described in section 2(a) of this order, the Administrator and the Assistant Secretary shall consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).
Sec. 4. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
THE WHITE HOUSE,
February 28, 2017.
Thank you, President Trump. I support clean air and clean water. I don’t support government’s interference in the property rights of Americans.