President Donald Trump began fulfilling his campaign pledge to dial back federal government regulation last week.
One of his first acts involving agricultural law was an executive order scaling back the present state of the "Waters of the United States" rule, commonly referred to as the WOTUS rule.
The White House Office of the Press Secretary issued a release entitled, "Restoring the rule of law, federalism, and economic growth by reviewing the 'Waters of the United States' Rule."
The executive order is sweeping and impressively worded. Section 1 of the order states, "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 Congress and the States under the Constitution."
It then directs the administrator of the Environmental Protection Agency and the assistant secretary of the Army for Civil Works to review the final WOTUS rule for consistency with the policy set forth in Section 1 of the executive order. It also directs them to publish for notice and comment a proposed rule rescinding or revising the rule, as appropriate and consistent with the law.
ADVERTISEMENT
What's really interesting to lawyers who practice agricultural law, like me, is that Section 2 (c) of the executive order states that with respect to any litigation before the federal courts related to the final rule, the EPA administrator and the assistant secretary of the Army for Civil Works shall promptly notify the attorney general of the pending review of the rule. Additionally, they are instructed to take this action 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 such litigation pending the completion of further administrative proceedings related to the rule.
And for those of you who thought Antonin Scalia was gone, he may be dead but he isn't forgotten. The executive order directs the EPA administrator and the assistant secretary of the Army to, in further rulemaking, interpret the term "navigable waters" in a manner "consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006)."
The Rapanos case started in 1989, and at issue in the case was whether the Clean Water Act applied to "filled wetlands." The EPA wanted to expand the jurisdiction of the Clean Water Act. Justice Scalia wrote the plurality opinion of the Court, and he was joined in that opinion by Chief Justice John Roberts, Justice Samuel Alito and Justice Clarence Thomas. Justice Scalia famously stated that the Army Corps of Engineers "exercises the discretion of an enlightened despot." His opinion stated that "navigable waters," under the Clean Water Act, included only relatively permanent, standing or flowing bodies of water, not intermittent or ephemeral flows of water.
The North Dakota Stockmen's Association labeled the executive order as a "victory for ranchers and landowners who were left with the uncertainty of a misguided regulatory scheme that expanded the agency's jurisdiction far beyond the original intent of Congress and the Clean Water Act." Additionally, North Dakota Gov. Doug Burgum, U.S. Sens. John Hoeven and Heidi Heitkamp, and U.S. Rep. Kevin Cramer all issued press releases lauding the executive order as a victory for farmers and agriculturalists across the state of North Dakota.
President Trump's direction to the EPA and the Corps to interpret navigable waters in a manner consistent with Justice Scalia's Rapanos decision is a profound victory for farmers. It begins what surely will be a dialing back of federal authority and federal jurisdiction. In conjunction with the confirmation of Scott Pruitt as the new head of the EPA, farmers across the Midwest should be pleased with the resulting freedom to worry less about complying with onerous and curious federal regulations, and instead to do what they do best: grow food for the world.
Editor's note: Welte is an attorney with the Vogel Law Firm in Grand Forks, N.D., and a small grains farmer in Grand Forks County.
