President Donald Trump will order the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers to review the “Waters of the United States” (WOTUS) regulation, effectively repealing another major Obama-era policy.
Trump wants the EPA and the Corps to make sure “waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty” and respecting the role of states and Congress.
The EPA and the Corps will repeal or revise parts of WOTUS that don’t match those policy goals, according to a copy of the order obtained by The Daily Caller News Foundation. Trump is expected to sign the order Tuesday.
Trump will order federal officials to interpret the term “navigable waters” in a “manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States” — a departure from the Obama administration interpretation of federal power.
Supreme Court Justice Antonin Scalia, who died in 2016, wrote in his plurality opinion for Rapanos that “navigable waters” refers to “relatively permanent, standing or flowing bodies of water” and not “ephemeral” flows.
Scalia also argued a “hydrological connection” is not a wetland under the Clean Water Act since it must have a “continuous surface connection” with a “water of the United States” so it is “difficult to determine where the ‘water’ ends and the ‘wetland’ begins.”
Scalia quipped “the Corps has stretched the term ‘waters of the United States’ beyond parody,” in his plurality opinion. Though because there was no majority, the federal appeal court’s decision favoring the Corps stood.
Trump promised to repeal WOTUS on the campaign trail. EPA and the Corps finalized the rule in 2015, arguing it was necessary to clear up jurisdictional confusion in the wake of two U.S. Supreme Court cases.
Republicans, farmers and industrial groups have called the rule an EPA “power grab” because it extends the agency’s powers to new heights over ephemeral waters not physically connected to “waters of the U.S.”
Thirty-two states filed suit against EPA and the Corps to get federal judges to strike down the rule. EPA Administrator Scott Pruitt sued to have the rule overturned while attorney general of Oklahoma. A federal judge in North Dakota issued a stay against WOTUS in August 2015, suggesting there could be legal issues with the rule.
From the beginning, however, Republicans were pointing to big problems with how WOUTS was crafted.
Utah Rep. Jason Chaffetz, the chairman of the House Committee on Oversight and Government Reform, issued a report that found high-level White House staffers “assured environmentalist groups the Administration would quickly finalize the WOTUS rule.”
That “caused the career staff involved in developing the rule to feel pressure to meet accelerated timelines, which caused deficiencies in the regulatory process,” according to Chaffetz’s report.
The Government Accountability Office found last year that EPA had violated federal anti-lobbying rules by conducting a massive social media campaign with environmentalists to promote WOTUS.
Ohio Republican Rep. Bob Gibbs introduced legislation Monday night to fully repeal WOTUS, but that effort could fall flat if EPA review the rule and repeals parts lawmakers oppose.
“Farmers in Ohio and across the nation cannot afford more costly and burdensome regulations from a Washington bureaucracy that thinks it knows best,” Gibbs said.
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