Five things to know about efforts to repeal Obama’s water rule

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.

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Trump administration officials, led by EPA Administrator Scott Pruitt, 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, 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 (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 (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 (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.