The Trump administration is working to repeal former President Obama’s Clean Water Rule. The 2015 rule by the Environmental Protection Agency (EPA) and the Army Corps of Engineers redefines the federal government’s authority when it comes to protecting waterways from pollution and harm. ADVERTISEMENT Trump administration officials, led by EPA Administrator Scott Pruitt Edward (Scott) Scott PruittCourt sets in motion EPA ban on pesticide linked to developmental issues Scientific integrity, or more hot air? OVERNIGHT ENERGY: Biden proposes billions for electric vehicles, building retrofitting| EPA chief to replace Trump appointees on science advisory panels | Kerry to travel to UAE, India to discuss climate change MORE, aim to repeal the rule, also known as Waters of the United States, and replace it with a regulation that would cover a smaller set of waterways. Doing so would fulfill a campaign promise by President Trump Donald TrumpTrump lashes out after grand jury seated for New York criminal probe Schumer tees up vote on Jan. 6 commission bill Senators struggle to save Jan. 6 commission MORE, and initiating the repeal process was one Pruitt's first actions when he took the helm at EPA in February 2017. Here are five things to know about where things stand in the effort to repeal the Obama-era rule. What is the rule? The regulation defines which waterways the EPA and Army Corps have jurisdiction over under the Clean Water Act. A Supreme Court case in 2006 — Rapanos v. United States — resulted in different interpretations of the federal government’s authority. So in 2015, the EPA and Army Corps wrote the Clean Water Rule with the goal of clarifying that small waterways like headwaters, ponds, wetlands and intermittent streams are protected. That meant a federal permit would be needed before dumping pollution in those waterways or filling them in. Many Republicans and industries like agriculture and developers cried foul, arguing that the rule gave the Obama administration power over puddles and even dry ditches. A federal appeals court put the rule on hold before it could take effect. The EPA under Trump decided to delay implementation for two years — a decision that is being litigated by environmentalists and Democratic states. Trump officials are working on a repeal-and-replace plan Pruitt wants to repeal the rule and replace it with a more industry-friendly version. In an executive order last year, Trump instructed the EPA to write the rule based on an opinion written by then-Justice Antonin Scalia in the 2006 Supreme Court case. Scalia said that federal authority can only extend over “relatively permanent” waterways. That’s in contrast to Justice Anthony Kennedy’s opinion, used as a guide by the Obama administration, which said waterways must have only a “significant nexus” to otherwise protected water. Jon Devine, head of federal water policy at the Natural Resources Defense Council, said the Pruitt approach “will almost certainly mean a significant ratcheting back on protections for streams that don’t flow year-round and for wetlands that don’t immediately abut other protected waters.” But Pruitt’s supporters say a Scalia-inspired rule is the way to go. “Even if they don’t adhere to his exact words, they need to make sure that it passes legal muster and provides that predictability and fairness that our members need when they look at a piece of property to develop,” said Jim Tobin, head lobbyist at the National Association of Home Builders. Officials have hit some speed bumps The repeal and replace process is taking longer than industry had hoped. The EPA proposed its repeal in June 2017 but hasn’t made the action final. Earlier this year, the EPA sent a new repeal proposal to the White House Office of Management and Budget for review, and the agency won’t say why it’s trying again to repeal it. “I think several stakeholders, including us, as well as the EPA, recognized there were some potential issues with that, so they decided to issue a supplemental rule in order to fix errors and smooth the process of repealing the 2015 rule,” Tobin said. Meanwhile, the replacement plan was submitted for White House review earlier this month. Pruitt says he still hopes to get the process finished by the end of 2018. The timing is making some anxious, especially since the EPA is working to repeal the previous rule before it finishes writing a new one. “The whole thing is very confusing," said Richard G. Leland, an attorney at Akerman LLP who works in property and land use law. "It’s a very irregular way of proceeding, and it certainly isn’t creating the kind of the certainty that administrative regulations are supposed to create.” Some in Congress want to help House Republicans have taken numerous steps to try to help Pruitt repeal the rule. Appropriations bills that passed the House both last year and this year would have allowed the EPA and Army Corps skip the public notice and comment process in repealing the water regulation. But in negotiating with the Senate, the provisions were stripped out of the final legislation for fiscal 2018 funding. The House this week passed its farm bill, which would repeal the water rule. But it too must be negotiated with the Senate, where the process has been more difficult for Republicans. Sen. Mike Lee Michael (Mike) Shumway LeeHillicon Valley: Amazon facing lawsuits alleging racial, gender bias | Senate Commerce panel advances Biden's top science nominee | Colonial Pipeline CEO to testify on Capitol Hill in June Senate Commerce advances Biden's top science nominee Senators introducing bill to penalize Pentagon for failed audits MORE (R-Utah) this week proposed a spending bill amendment that would repeal the rule, but senators on both sides of the aisle voted against it, saying the measure threatened an agreement to avoid controversial policy provisions in spending legislation. “I can't find many people on this side of the aisle who approved of the Waters of the United States regulation of the previous administration,” Senate Majority Leader Mitch McConnell Addison (Mitch) Mitchell McConnellSchumer tees up vote on Jan. 6 commission bill Senators struggle to save Jan. 6 commission GOP leaders face new calls to boot Greene MORE (R-Ky.) said on the Senate floor. “This is not about Waters of the United States or whether we are for it or against it. This is about whether we want to get away from annual omnibus appropriation bills." Rep. Mike Simpson MIchael (Mike) Keith SimpsonRivers, hydropower and climate resilience The Hill's Morning Report - Presented by Facebook - Senate path uncertain after House approves Jan. 6 panel Overnight Energy: Biden reportedly will pledge to halve US emissions by 2030 | Ocasio-Cortez, Markey reintroduce Green New Deal resolution MORE (R-Idaho), who chairs the Appropriations Committee panel with jurisdiction over the Army Corps, said he’s hopeful that the Senate will acquiesce if the two chambers negotiate the funding bill in a conference committee. “My hope is that we’ll get to conference and it will stay in,” he told The Hill Friday. The fight is nearly certain to go to court Like most high-profile regulatory matters, the ultimate arbiter of the Clean Water Rule is likely to be the judicial branch. Environmental groups and Democratic states already sued the Trump administration for its two-year delay of the rule, and they’re likely to keep suing, particularly if the rule is eventually repealed and replaced. “It’s all going to go to courts and probably end up in the Supreme Court eventually,” said Paul Boudreaux, a professor at Stetson University College of Law. In the end, federal judges and Supreme Court justices may have to decide whether the Trump administration’s eventual rule aligns with the Clean Water Act and the Constitution.<doc-sep>The Environmental Protection Agency and Army Corps of Engineers have sent a proposal to revise an Obama administration rule intended to protect bodies of water to the White House for review, a move that could roll back what some industry groups have called burdensome federal overregulation. The Clean Water Act regulates bodies of water in the United States, including permits for any entity that will release chemicals into bodies of water or are responsible for cleaning up pollution and oil spills. Part of that law includes a definition of which bodies of water are regulated by the federal government, which has led to legal disputes about how the government should define what qualifies as a "Water of the United States." In 2015, the Obama administration finalized a rule that would place smaller streams and other areas where water flows into rivers or lakes under federal jurisdiction, meaning the government would regulate runoff into that water. That rule was delayed by legal challenges and postponed by the Trump administration last year. Pruitt has met with stakeholders around the country about the rule, including many farmers and farm groups who say the regulations are a burden on their businesses. He has said multiple times that it was an overreach for the federal government to regulate bodies of water like a "dry creek bed," "puddle" or "drainage ditch." President Donald Trump signed an executive order last February directing the EPA and Army Corps of Engineers and other agencies to re-evaluate the rule. "I was in Salt Lake City, Utah last year, as an example, and I was standing outside a subdivision that was being built in Salt Lake and I was with an Army Corps of Engineers representative who looked at an ephemeral drainage ditch that was part of this subdivision being built and he pointed to it and said 'Scott, that is a water of the United States.' And I said 'well it's not going to be anymore,'" Pruitt said Thursday in a meeting with the Nebraska governor and groups who have advocated for changes to the WOTUS rule. Pruitt tweeted Thursday night that the administration stopped that rule and proposed a "much more reasonable" version. "Farmers, ranchers, landowners, and other stakeholders are counting on EPA to listen to their input when it comes to defining 'waters of the United States,'" Pruitt said in a statement. "Today, we are taking an important step toward issuing a new WOTUS definition and answering President Trump’s call to ensure that our waters are kept free from pollution, while promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the federal government and the states under the statutory framework of the Clean Water Act." The Associated Press reported Friday that the new rule could threaten programs intended to protect wetlands by offering credits to developers who pledge to protect the wetlands. The EPA did not provide specific information about the new definition but it will be published for public comment after it is reviewed by the White House Office of Management and Budget.<doc-sep>
The Trump administration took a major step Friday toward rewriting an Obama administration water pollution rule in a more industry-friendly way. The Environmental Protection Agency (EPA) and the Army Corps of Engineers on Friday sent their proposal to redefine “Waters of the United States” to the White House Office of Management and Budget for review. It is the final step before the agencies can release the proposal for public comment. The Waters of the United States rule, also dubbed WOTUS, defines which bodies of water are subject to federal jurisdiction under the Clean Water Act. ADVERTISEMENT The Obama rule, written in 2015 and known as the Clean Water Rule, was highly controversial. It was intended to clarify that small waterways like ponds and headwaters can be protected. But agriculture, developers and other industries complained that it was too far-reaching and would subject huge swaths of land to federal oversight. “Farmers, ranchers, landowners, and other stakeholders are counting on EPA to listen to their input when it comes to defining ‘waters of the United States,’” EPA Administrator Scott Pruitt Edward (Scott) Scott PruittCourt sets in motion EPA ban on pesticide linked to developmental issues Scientific integrity, or more hot air? OVERNIGHT ENERGY: Biden proposes billions for electric vehicles, building retrofitting| EPA chief to replace Trump appointees on science advisory panels | Kerry to travel to UAE, India to discuss climate change MORE said in a statement. “Today, we are taking an important step toward issuing a new WOTUS definition and answering President Trump Donald TrumpTrump lashes out after grand jury seated for New York criminal probe Schumer tees up vote on Jan. 6 commission bill Senators struggle to save Jan. 6 commission MORE’s call to ensure that our waters are kept free from pollution, while promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the federal government and the states under the statutory framework of the Clean Water Act.” Pruitt’s rewrite is expected to be more industry-friendly, aligning with an executive order President Trump signed early last year that asked the EPA to write a new rule that aligned with what late Supreme Court Justice Antonin Scalia thought should be the definition. Pruitt’s action on Friday comes as his ethics and spending scandals continue to pile up. His regulatory rollbacks, like the water regulation, have kept him largely in the good graces of Trump, congressional Republicans and conservatives, despite the scandals. The rewrite of the rule is the second part of a two-stop process Pruitt has planned to repeal and replace the Clean Water Rule. He proposed in June 2017 to repeal the old rule, though he has not made it final yet. The Clean Water Act mainly covers large, navigable waterways like rivers and bays. But the EPA must also protect some upstream waterways that feed into them. The Obama rule centered on the concept that waterways with a “significant nexus” to navigable ones would be regulated. That was based on a plurality opinion written by Supreme Court Justice Anthony Kennedy in the 2006 Rapanos v. United States case, which concluded with a messy 4-1-4 vote. But Scalia’s opinion was that only “relatively permanent” waterways should be covered, which would cover less area than Kennedy’s definition. The Obama rule was put on hold by multiple federal courts before it took effect.