Executive Order 13778: Waters of the US Rule

What the Executive Order Says

Executive Order (EO) 13778 is entitled "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the "Waters of the United States" Rule."  It was published on February 28th, 2017 and it has 4 sections

Section 1

This section makes a statement about policy.  It is trying to state that there needs to be a balance between protecting the environment while at the same time relaxing the rules so as not to stifle economic activity.

Section 2

This section directs that the Administrator of the Environmental Protection Agency needs to review the rule previously published in 2015 regarding the definition of "Waters of the United States".  Similarly, if other Executive Branch agencies have made rules in line with this, these need to be reviewed and then modified to ensure that they do not stifle economic activity.  Finally, since there is on-going litigation around this rule, if the rules are changed, the Attorney General is to be notified so that the Department of Justice can take a revised legal position in cases in which they are involved.

Section 3

This section directs the EPA to use a definition of "Navigable Waters" that was defined in a written opinion of Supreme Court Justice Scalia.  If memory serves, this was a minority opinion, but in line ideologically with Republican policies.

Section 4

This section includes the legal fine print necessary to ensure the constitutionality of the EO.

My Commentary

This was one of the landmark Executive Orders aimed at reversing Obama's signature policies and fulfilling a campaign promise.  The details are subtle and at the time this was issued, many media outlets had to put together explainers on why it mattered.  Fundamentally, it will have an effect to lessen the protections against pollution and exploitation of waterways in the United States.  Typically, it will be larger corporations that would be able to take advantage of the revision of the rules that will be the implementation of this EO.  However, as always, there is a process and it will take time before the effects will be seen.