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Speeding up the rollback of the Obama-era Clean Water Rule by circumventing the normal rulemaking process is the goal of a provision in the energy and water spending bill the House Appropriations Committee will consider July 12.
The provision in the energy and water spending bill for fiscal 2018 would allow the Environmental Protection Agency and the U.S. Army Corps of Engineers to withdraw the 2015 stayed Clean Water Rule “without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.”
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., which 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.
“I would read this provision as likely to mean that EPA is authorized to withdraw the rule without complying with the procedural requirements of the Administrative Procedure Act,” Justin Pidot, environmental professor with the University of Denver Sturm College of Law, said.
The effect of this provision would be to shorten the rulemaking process by getting rid of the public comment process, Larry Liebesman, senior adviser to Dawson Associates, told Bloomberg BNA.
Liebesman expressed doubt that this measure will be enacted into law, as he expects Democrats to put up a fight against the bill when it reaches the Senate. Pidot added that such a move would not go unchallenged in courts.
The energy and water spending bill provides funding for a number of agencies, including the corps, which co-wrote the currently stayed 2015 Clean Water Rule. The EPA and the corps are under an executive order to withdraw and rewrite the rule, and both have already started the process of withdrawing the rule. They released the proposal to reinstate a prior regulation, but have not formally sought public comment.
Aside from the measure to expedite the withdrawal of the Clean Water Rule, the Republican-controlled House Appropriations Committee has included a number of other measures that affect funding for federal water programs.
One such measure would remove what Liebesman, a former Justice Department senior trial attorney, termed the “recapture” provision from the Clean Water Act section that deals with dredge-and-fill permits, which give companies and others permission to dredge and fill wetlands and streams to excavate mines, or build roads or homes.
This “recapture” provision would allow normally exempt farming and forestry activities from dredge-and-fill permits unless the activity results in draining an adjacent wetland.
At first blush, the measure appears to reaffirm the exemptions in the Clean Water Act, but a closer look reveals that it gives farmers, ranchers and foresters relief from the potential threat of being regulated, Liebesman said.
Another measure would prevent the Bureau of Reclamation and the corps from using federal funds to remove any federally owned or operated dam unless authorized by Congress. And yet another would ban the federal government from conducting any marine or coastal planning to implement the National Ocean Policy that is designed to prevent pollution from entering the ocean waters.
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The text of the Energy and Water Appropriations Act (H.R. ) is available at http://src.bna.com/qDs
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