EPA Starts Water Rule Repeal, Fulfills Trump Campaign Pledge

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By Amena H. Saiyid

EPA Administrator Scott Pruitt June 27 initiated the repeal of an Obama-era water jurisdiction regulation by issuing a proposal that would reinstate prior policies on what waters are subject to federal protections, the agency announced.

The proposed repeal, once in final form, will be the first step the Trump administration takes in a two-step process to undo the 2015 Clean Water Rule, also known as the Waters of the U.S. rule (WOTUS). The second step, which Pruitt has said will be completed by as soon as the end of the year, will involve a rewrite of the 2015 regulation.

“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” Pruitt said in a June 27 news release announcing the proposal. “This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

Waters and wetlands that fall under Clean Water Act jurisdiction are protected from pollution by federal discharge and dredge-and-fill permits, oil spill prevention requirements, water quality standards, and state water quality certifications, among other programs.

The Obama-era water rule is facing dozens of lawsuits from various business, agriculture and manufacturing groups, including Murray Energy Corp., who argued the federal government improperly expanded its regulatory reach over waters. Environmental groups also have challenged the rule to make it more protective than its current form.

The significance of this first step (RIN:2040-AF74), a joint action by the EPA and the U.S. Army Corps of Engineers, is that it will take the 2015 Obama water rule off the books, rendering moot all outstanding federal legal challenges against the regulation, attorneys said.

Trump Promised Rollback

The administration’s action moves Trump closer to fulfilling the pledge he made during his presidential campaign and in a February executive order that directed the EPA to undo the regulation that he and other Republicans have termed a “federal land grab.”

Trump ordered the EPA and the U.S. Army Corps of Engineers to craft the new jurisdiction rule with states, their co-regulators in implementing the Clean Water Act. States are eagerly looking forward to that and have encouraged the administration to share more than just an outline of its plans to rewrite the jurisdictional rule.

The undoing of the Obama-era water rule will involve the reinstatement of a 1986 jurisdiction rule and related guidance that the EPA said was in place “prior to the issuance of the Clean Water Rule and that is being implemented now under the U.S. Court of Appeals for the Sixth Circuit’s stay of that rule.”

A Sixth Circuit panel issued a nationwide stay of the WOTUS rule in 2015 after determining that there was a good chance that groups challenging the rule would prevail.

Reed Hopper, principal attorney with Pacific Legal Foundation’s environmental law practice, told Bloomberg BNA in an email that the proposed repeal of the Clean Water Rule would end that Sixth Circuit litigation. However, Hopper said it would not end proceedings before the U.S. Supreme Court, which has been asked to decide which federal court should hear challenges to a water jurisdiction rule.

“The justices know they need to address the issue before a new WOTUS rule is issued,” Hopper said.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

For More Information

The proposed repeal of the Clean Water Rule is available at http://src.bna.com/qgY.

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