Water Rule Repeal Makes EPA’s Pruitt a Farm Hero

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By David Schultz

A ballroom full of farmers gave the new EPA administrator a hero’s welcome Feb. 28 as he announced his agency would begin the process of repealing an Obama-era water regulation.

Scott Pruitt came to an agriculture industry convention in Maryland directly from the White House, where President Donald Trump signed an executive order instructing federal agencies to begin the process of rescinding the so-called Waters of the United States, or WOTUS, rule.

“Relief is on the way,” Pruitt told the attendees the American Farm Bureau Federation convention, as they applauded in one of the three standing ovations that the Environmental Protection Agency chief received at the convention.

However, launching the repeal process will likely be much more difficult than actually repealing WOTUS, a rule that defines which bodies of water are governed by the Clean Water Act. After Pruitt’s remarks, several of the farmers he addressed told Bloomberg BNA they don’t expect to see the matter fully resolved before the end of this decade.

Executive Order

Trump’s latest executive order instructs the EPA and the Army Corps of Engineers to begin work on issuing a new rule that narrows the scope of which waters are covered by the Clean Water Act.

The agriculture industry, along with the energy sector and other industries, strongly opposed WOTUS because they worried it was too broad and would require businesses to obtain water pollution permits for activities that currently don’t require permitting.

When he was the Republican attorney general for Oklahoma, Pruitt was among many state officials who filed lawsuits against the rule.

“The statute was taken and re-imagined in a way to give this agency more power than Congress intended,” Pruitt told the convention-goers. “This is the first step toward fixing what’s wrong with our federal regulations.”

‘Not Afraid of the Process’

The president’s executive order gives his agencies the option of rescinding or revising the WOTUS rule. Repealing it without a replacement may not pass judicial muster; several Supreme Court rulings from the mid-2000s found that the federal government’s definition of which water bodies are regulated was unacceptably vague.

Trump’s Feb. 28 order instructs the agencies to consider whether they can refashion WOTUS to make it align more closely with a 2006 opinion from then-Justice Antonin Scalia, which said only streams that flow into navigable waters should be regulated.

Will Rodger, a Farm Bureau spokesman, said farmers understand that the legal uncertainty over this issue will not be solved with a single executive order.

“We’re not afraid of the process,” Rodger told Bloomberg BNA. “This will take years. We’re looking at a whole new rulemaking.”

Dave Wyeth, a grain and livestock farmer from Hendricks County, Ind., said he was unsure about the timeline for repealing WOTUS, but was “glad the discussions have started.”

Clouds Ahead?

Though some of Pruitt’s early actions may be earning cheers from various industry groups, the road ahead looks challenging.

Just as the Obama administration’s WOTUS rule drew legal challenges—some of which Pruitt himself was involved in—any attempts to repeal or revise WOTUS also will be challenged in court by environmental groups that favor a broad interpretation of the Clean Water Act.

Additionally, though Pruitt has only been leading the EPA for one week, a controversy already has surfaced.

Pruitt told senators during his confirmation process that he never used a personal e-mail account to conduct public business, but documents later obtained through a public records request in Oklahoma showed that he had done this. Democratic senators critical of Pruitt—who say the e-mails prove their suspicion that he is too close to fossil-fuel interests—said the issue raises questions about his credibility.

Pruitt declined to answer questions on the issue from Bloomberg BNA at the Farm Bureau convention. Oklahoma officials on Feb. 28 won a stay in the state Supreme Court of a court-ordered release of another batch of e-mails and other documents after arguing it was impractical and unfair to prioritize Pruitt’s e-mails over other open-records requests they have received.

To contact the reporter on this story: David Schultz in Washington at dSchultz@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

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