Trump rolls back Waters of the U.S. rule

President Donald Trump has signed an executive order that requires the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to review Waters of the United States regulations to make sure they align with the administration’s goals. The move, which has been expected since Trump took office, marks another rollback of a major Obama-era policy.

Trump has long talked about his desire to repeal the Waters of the U.S. (WOTUS) rule, which has been one of the EPA’s most hotly-contested regulations. The rule was first created under the Clean Water Act and gives the federal government authority over major bodies of water, rivers, streams and wetlands to make sure they are pollution free.

In recent years, the law has been tangled up in court with major disputes regarding the ownership of certain waterways and the restrictions the law places on industries, such as farming. A large part of this dispute also concerns the definition of the term “navigable waters,” to which the rule applies.

The key direction in the Order instructs the review to “consider interpreting the term ‘navigable waters,’ as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”

Under Scalia’s opinion in Rapanos, a water body would fall under the rule if it had a “continuous surface connection” with a permanent water body. In the same case, Justice Anthony Kennedy defined the standard as the existence of a “significant nexus” to a permanent water body. Kennedy’s standard is the underpinning of the current Clean Water Rule and its application results in a much greater number of water bodies qualifying as waters of the U.S. than would qualify under revisions that would follow Scalia’s standard.

Trump’s new executive order would require the EPA and other departments to review the rule and ensure it promotes economic growth and reduces any regulation that the administration deems excessive. The order would then require agencies to rescind or revise aspects of the regulation that are not compatible with the Trump administration’s policy guidance.

The New Face of Water Financing

EPA’s Waters of the U.S. rule gives the federal government authority over major bodies of water, rivers, streams and wetlands to make sure they are pollution free.

EPA Administrator Scott Pruitt has criticized the Waters of the U.S. rule along with many Republican lawmakers who view it as an expansion of government power that puts excessive regulations on private landowners and agricultural businesses. They also argue the rule extends the EPA’s powers to new heights over ephemeral waters not physically connected to “waters of the U.S.”

“This regulation usurps the state’s authority over its land and water use, and triggers numerous and costly obligations under the [Clean Water] Act for the state and its citizens,” Pruitt wrote last year in a court filing.

In November 2015, the Senate attempted to block Waters of the U.S. from going into effect by passing a bill that would repeal the rule. But the order was vetoed by President Obama, who had promised to override any attempt to block its implementation.

In May 2016, the EPA finalized a water rule redefining the meaning of “waters of the United States” under the Clean Water Act. The agency argued the redefining was necessary to clear up uncertainty caused by previous Supreme Court decisions on EPA’s Clean Water Act authority.

EPA officials went to great lengths to try to convince Congress of their new definition of “waters of the United States” and that the rule did not expand the agency’s powers or create any new permitting requirements for farmers and others most affected by the rule.

“The final rule doesn’t create any new permitting requirements for agriculture, maintains all previous exemptions and exclusions, and even adds exclusions for features like artificial lakes and ponds, water-filled depressions from construction, and grass swales—all to make clear our goal is to stay out of agriculture’s way,” former EPA Administrator Gina McCarthy wrote in a blog post last year.

But Congress and dozens of states didn’t buy the agency’s arguments.

After the rule was finalized, 32 states sued the agency to have the rule struck down, and federal lawmakers on both sides of the aisle began looking at ways to dismantle the rule. Federal court has since blocked its implementation while it is litigated.

Trump has said that he wants the EPA and the Corps to make sure water bodies are kept pollution-free while also promoting economic growth. The timeline for proposing a revised regulation in accordance with the new Executive Order is unknown at this time.

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