An executive order signed by President Donald Trump on February 27 authorizes the Environmental Protection Agency (EPA) to rewrite a contentious rule asserting federal authority over small bodies of water.
The Waters of the U.S. (WOTUS) rule, also known as the “Clean Water Rule,” finalized by the EPA and the U.S. Army Corps of Engineers in June 2015 was promulgated to protect streams and wetlands from pollution and degradation.
The Trump administration could this week also sign a similar order directing the EPA to withdraw and rewrite the Obama administration’s signature Clean Power Plan, a rule that seeks to curb carbon emissions from the U.S. power sector.
An Executive Order with Little Bite?
The Clean Water Act, enacted in 1972, granted the federal government broad powers to limit pollution in so-called “navigable” waterways like the Great Lakes and the Ohio and Mississippi rivers. However, as it promulgated the WOTUS rule, the EPA noted that a pair of Supreme Court Decisions in 2001 and 2006 made it unclear whether the act also covered smaller bodies like groundwater, headwaters, streams, and wetlands that feed those larger waterways.
The agency said that it had for a decade—starting in the George W. Bush administration—received requests from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists, and the public for a rulemaking that would clearly define and protect tributaries that impact the health of downstream waters.
Trump’s executive order directs the EPA administrator and the assistant secretary of the Army of Civil Works to review the final rule for consistency and publish a notice for comment of a proposed rule rescinding or revising the rule. It also directs the entity heads to “consider interpreting” the term “navigable waters” as now-deceased Justice Antonin Scalia did in the 2006 Supreme Court decision (Rapanos v. United States, 547 U.S. 715).
But according to law firm Nossaman LLP, the process and timeline for rewriting and proposing new rules and then responding to the litigation that will likely ensue is unclear. Other sources suggest that it could take longer than Trump’s first presidential term.
“EPA’s so-called waters of the United States rule is one of the worst examples of federal regulation and it’s truly run amok and it’s one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land prohibiting them from being allowed to do what they are supposed to be doing. Been a disaster,” said Trump before he signed the order.
“A few years ago the EPA decided that navigable waters can mean nearly every puddle or every ditch on a farmer’s land or anywhere else that they decide. It was a massive power grab,” he said.
A Controversial Rule
Along with power generators—manufacturers, farmers, and Republican legislators have pushed back against the rule. The National Association of Manufacturers, for example, says the rule is another regulatory burden that expands the federal government’s reach into manufacturers’ onsite activities.
Electric utilities have expressed concerns that water near plants, such as water drainage ditches and cooling ponds, may be considered U.S. waters. According to the Nuclear Energy Institute, the rule will create “significant practical problems” for companies operating nuclear power plants and planning new facilities.
At least 31 states—along with many local governments and private industry—have challenged the rule in court, arguing that it violates the 10th Amendment’s federalism principles and that it exceeds the Constitution’s commerce clause.
But legal challenges to the rule have been mired in jurisdictional wrangling over which federal court should hear the case. The U.S. Supreme Court on January 13, 2017, agreed to resolve only the jurisdictional dispute—not a challenge to the substance of WOTUS—in a ruling that could come next year. On the same day, the Obama administration filed a 300-page brief defending the rule with the Sixth Circuit Court of Appeals—a federal court, which in February 2016 held that it could hear a challenge to WOTUS.
Scott Pruitt, who has freshly been sworn in as the EPA’s new administrator, led legal challenges to the rule while he was Oklahoma’s former attorney general.
Congressional efforts to block the rule, meanwhile, were derailed in early 2016 after Senate Republicans failed to override former President Barack Obama’s veto of their legislation.
—Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)