White House officials are reviewing an updated Environmental Protection Agency (EPA) proposal to repeal the Obama administration’s “waters of the United States” that expanded federal control over waters on private property.
EPA officials submitted a supplemental proposal to the Office of Management and Budget (OMB) on Thursday. The proposal clarifies the agency is in fact repealing the Obama-era regulation and addressing some concerns brought up by stakeholders. The proposal also states EPA will be re-codifying the pre-Obama definition of WOTUS, The Daily Caller News Foundation has learned.
The Obama administration finalized the Clean Water Rule in 2015 that expanded the definition of “waters of the United States” (WOTUS), arguing the rule was needed to clear up uncertainties in the wake of two U.S. Supreme Court decisions.
More than half of U.S. states sued EPA to have the rule overturned. The courts quickly issued regulatory stays on the Clean Water Rule, meaning it never really went into effect. Manufacturers, energy companies, farmers, ranchers and land developers said the Obama-era rule would only make it harder to do business and manage land.
President Donald Trump signed an executive order last year, asking EPA and the U.S. Army Corps of Engineers to replace the Obama-era WOTUS rule with one consistent with former U.S. Supreme Court Justice Antonin Scalia’s plurality opinion in the 2006 Rapanos v. United States case.
EPA began the WOTUS repeal process in June and published a plan for WOTUS repeal in the Federal Register the following month. EPA’s new submission clarifies some concerns stakeholders expressed last summer, but the details aren’t clear because it’s still under review.
“From day one, EPA and the Department of the Army have been committed to providing certainty and clarity to our state and tribal co-regulators and farmers, ranchers and other stakeholders across the country,” an EPA spokeswoman told TheDCNF.
“After reviewing this input, EPA and the Army have decided to issue a supplemental proposal to provide the public with additional clarity on the scope of the agencies’ efforts,” the spokeswoman said.
The move comes after environmentalists published a memo related to Clean Water Act enforcement. The memo, obtained by Public Employees for Environmental Responsibility (PEER), detailed how Pruitt would reserve the final say on jurisdiction under the Clean Water Act that was formerly delegated to regional officers.
PEER lambasted Pruitt’s “restore regulatory certainty” as a “crude Clean Water Act coup d’état.”
“This action subjects safeguards for clean water across the U.S. to filtration through one politician’s hands,” PEER’s New England Director Kyla Bennett said in a statement. “Every corporation that wants a pass on Clean Water Act compliance is invited to privately meet with the most user friendly EPA Administrator in history.”
However, Pacific Legal Foundation attorney Jonathan Wood said the memo could “promote both consistency in application and more accountability.” PLF has challenged WOTUS in federal court.
“As it stands now, it makes a huge difference which regional office reviews your case — and often which bureaucrat within the office you happen to draw,” Wood told TheDCNF. “Centralizing final decision making should lead to more consistent decision-making.”
“There’s also an important accountability issue here,” Wood said. “Clean Water Act decisions require a mix of science and policy judgment.”
“As the person appointed by the President and confirmed by the Senate to make those judgments, Pruitt can be forced to answer for the exercise of that policy-making power,” Wood said. “When these decisions are made by anonymous regional bureaucrats, it is exponentially harder to hold anyone accountable.”