Posted on February 6, 2018
By Spike Jordan, Star-Herald
Almost a year ago, President Donald Trump issued an executive order directing the Environmental Protection Agency to review a contentious Obama-era clean water rule and — if possible — eliminate it.
“The EPA’s so-called ‘Waters of the United States’ rule is one of the worst examples of federal regulation, and it has truly run amok, and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land,” Trump said in February 2017 before signing the order. “It’s prohibiting them from being allowed to do what they’re supposed to be doing. It’s been a disaster.”
And it now appears that the days of the rule are numbered.
The WOTUS rule was rolled out by the Obama Administration’s EPA in 2015, and greatly expanded EPA and U.S. Army Corps of Engineers (USACE) regulatory authority to what critics said was beyond the scope of what Congress had approved under the Clean Water Act. WOTUS significantly expanded the definition of navigable waters, to include everything from ditches, streams, wetlands and puddles, creating vexation among many in agriculture, mining and industry. The rule was subsequently challenged by 31 states and 53 non-state parties, leading to stays being issued by both a federal district court and a federal court of appeals. WOTUS was never fully implemented.
However, the stay from the appeals court was lifted last week after the Supreme Court, in a 9-0 unanimous opinion found that challenges to the Clean Water Rule belong in federal district courts.
“Congress has made clear that rules like the WOTUS Rule must be reviewed first in federal district courts,” Justice Sonia Sotomayor wrote in the opinion.
In a Senate Environment and Public Works Committee hearing Tuesday, EPA Administrator Scott Pruitt told lawmakers the EPA plans to publish a new definition of WOTUS by April or May. When questioned by Sen. Deb Fischer (R-Neb.), Pruitt said a new WOTUS rule would not be traditional deregulation.
“We will be providing regulatory certainty because there are steps being taken to provide a substitute for WOTUS,” Pruitt said.
On Wednesday, the Trump administration said it would delay implementing WOTUS by another two years to give the EPA and Corps of Engineers more time to write the rule to replace it.
“EPA is taking action to reduce confusion and provide certainty to America’s farmers and ranchers,” Pruitt said in a statement Wednesday. “The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation.”
In June 2017, the EPA and the Army Corps of Engineers said it would be abandoning the rule, and federal officials would go back to enforcing a guidance document from 2008 when deciding whether a waterway is subject to federal oversight for pollution control purposes. The announcement opened a public comment period which ended last September, however, those comments have not yet been released.
The news of the rule’s pending demise drew support from lawmakers and ag leaders.
“The Obama administration’s outrageous Waters of the United States rule would have put backyard ponds, puddles and farm fields under Washington’s control,” Sen. John Barrasso of Wyoming, chairman of the Senate environment committee, said in a statement. “This delay gives the Trump administration time to revise this rule.”
Nebraska Farm Bureau President Steve Nelson issued a statement on behalf of the the Common Sense Nebraska Coalition, a 31-member group consisting of numerous agriculture and industry organizations.
“Now that the delay of the rule has been finalized, we call upon the EPA to work with our nation’s landowners to develop a rule which follows common sense and also protects our nation’s water supply,” Nelson said. “These ideas are not mutually exclusive. Our coalition stands ready to work with the EPA as well as the Corps, to develop a new rule which accomplishes both of these goals.”
However, environmentalists alleged that the rewrite will let polluters off the hook.
“The Trump administration is playing politics with our drinking water,” Janette Brimmer, a lawyer with the legal advocacy group Earthjustice, told the Associated Press. “We need to protect the streams and wetlands that provide the drinking water of one in three Americans. This delay is an obvious attempt to make it easier for corporate interests to pollute our waterways.
In comments to the Senate EPW committee on Tuesday, Pruitt said a final rule would be ready by the end of the year.
Source: Star-Herald
