WASHINGTON, June 28, 2017 - The Environmental Protection Agency and Army Corps of Engineers have acted officially to rescind the “waters of the U.S.,” or WOTUS, rule, by sending a proposal to withdraw it to the Federal Register on Tuesday.
Earlier in the day, EPA Administrator Scott Pruitt told the Senate Appropriations Committee’s Interior subcommittee that following withdrawal of the old rule, a proposed replacement rule would be issued by the fourth quarter of this year or the first quarter of 2018, at the latest.
That gave him a little more wiggle room than his prediction to the House Interior and Environment spending subcommittee on June 15 that a new rule – not just a proposal – would be adopted in that time frame. But it’s still an ambitious timetable, given the need to accept and adequately respond to comments. In addition, there’s a good chance that environmental groups will challenge the withdrawal in court.
The proposed withdrawal, however, comes with a 30-day comment period, relatively short given the controversial nature of the subject matter.
And Congress is ready to help EPA get around nettlesome administrative requirements. The energy and water spending bill released by the House Appropriations Committee Tuesday would allow EPA and the Corps to withdraw the rule “without regard to any provision of statute or regulation that establishes a requirement for such withdrawal,” such as the Administrative Procedure Act, which requires agencies to consider public comments before adopting new regulations.
The spending bill also would bar spending any money to require permits for agricultural activities already exempted by the Clean Water Act – “normal farming” activities such as plowing, and construction or maintenance of stock ponds and irrigation ditches, and maintenance of drainage ditches.
The proposed withdrawal, posted mid-afternoon on Tuesday, hints at the challenge that lies ahead as EPA and the Corps try to craft new regulations. It says that although the previous administration acknowledged the important role states and tribes can play in implementing the Clean Water Act, its WOTUS rule did not discuss CWA language that says states have the “primary responsibilities and rights . . . to prevent, reduce, and eliminate pollution.” That language needs to be considered “in setting the outer bounds of jurisdiction of the (Clean Water) Act,” the proposal says.
Reaction to the proposed withdrawal came in quickly. In Congress, House Agriculture Committee Chairman Mike Conaway, R-Texas, Speaker Paul Ryan, R-Wis., and Senate Environment and Public Works Chairman John Barrasso, R-Wyo., all praised it, with Conaway calling it “an important first step to getting the federal government out of America’s backyards, fields and ditches.”
Groups such as the National Association of State Departments of Agriculture, American Farm Bureau Federation and National Rural Electric Cooperative Association also applauded the action.
NASDA President and Louisiana Commissioner of Agriculture Michael Strain said the 2015 rule “lacked clarity, and was fraught with procedural concerns and violations of congressional intent, making it necessary to start over with a new rule that protects clean water and respects state regulatory authority.”
AFBF President Zippy Duvall said the rule “was never really about clean water. It was a federal land grab designed to put a straightjacket on farming and private businesses across this nation.”
And NRECA CEO Jim Matheson said he appreciated Pruitt’s “recognizing the need to revisit this overbearing regulation and avoid needless increased costs for millions of electric co-op consumers. As written, the rule would dramatically expand federal oversight of features that only hold water after a rain, (which) would have increased costs and impaired the ability of co-ops to build and maintain power lines.”
On the other side of the issue, environmental groups blasted the proposal. American Rivers said the Clean Water Rule provided “clarity as to which streams and wetlands are protected by the Clean Water Act, and which are not.” And the National Wildlife Federation’s CEO, Collin O’Mara, said “the administration is proposing to remove protections for streams/wetlands that provide drinking water for 100 million-plus Americans.”
If the withdrawal is made final, EPA and the Corps would continue to interpret the Clean Water Act as they have been since WOTUS was stayed by the 6th Circuit Court of Appeals in October 2015, not long after it had gone into effect – using previous Supreme Court decisions and agency guidance to determine the limits of their jurisdiction.