The long-anticipated battle to repeal the Obama administration’s contentious “waters of the United States” (WOTUS) rule may be cut short if the Senate passes the House’s “minibus” spending bill.
The Senate will soon reconcile their budget bill with a nearly $790 billion spending bill passed by the House on Thursday. The bulk of the bill has to do with defense spending, but one small provision would allow the Trump administration to immediately withdraw WOTUS without having to go through the formal public comment process.
The appropriations bill says the administration “may withdraw the Waters of the United States rule without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.”
The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers jointly administer WOTUS, which was finalized by the Obama administration in 2015. The rule never really went into effect, however, because the courts quickly halted its implementation.
If passed by the Senate, the bill would allow the Trump administration to bypass the Administrative Procedures Act that requires rules, whether being proposed or withdrawn, to be subject to public comments.
Passing the bill would be a big win for the 31 states and dozens of businesses, trade groups and conservative groups challenging the legality of WOTUS in court. It would also save the EPA the trouble of putting their withdrawal through a cumbersome process.
President Donald Trump ordered the EPA in February to rewrite WOTUS in a manner consistent with former Supreme Court Justice Antonin Scalia’s opinion in the 2006 Rapanos v. U.S. case that’s more restrictive of federal control of waterways than what the Obama administration proposed.
EPA Administrator Scott Pruitt announced that the agency was rewriting the rule in late June. The EPA published the first step of its plan to repeal and replace WOTUS in the Federal Register on Thursday.
The “minibus” bill would also prohibit the EPA and the Corps from using the Clean Water Act, the WOTUS rule’s overarching legislation, to regulate certain bodies of water on farmlands, including ponds and irrigation ditches.
The bill is expected to pass the Senate, but first it must be reconciled with any Senate appropriations bills for energy and environment-related matters. Once reconciled, the bill would need to be approved again.
Senate Democrats may pose somewhat of a problem since they want increases to domestic spending programs along with the rise in defense outlays.
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