President Trump is expected to sign an executive order tomorrow aimed at killing the Obama administration's contentious Clean Water Rule that had drawn the ire of farmers, housing developers and energy companies, according to a source close to the administration.
Also known as the Waters of the U.S. rule, or WOTUS, the regulation was written by U.S. EPA and the Army Corps of Engineers to clarify the reach of federal regulators over wetlands and waterways under the Clean Water Act.
While the executive order cannot itself repeal WOTUS, which was finalized in May 2015, a draft copy of the order obtained by E&E News will direct EPA and the Army Corps to begin a formal review of the regulation, a likely first step to dismantling it.
The executive order would also mark a significant change in the government's legal strategy for deciding which wetlands and streams are protected under the Clean Water Act. For more than a decade, federal agencies have relied on Justice Anthony Kennedy's opinion in a muddled 2006 wetland-permitting case, Rapanos v. United States, in determining where the federal reach over waterways begins.
The court ruled in favor of Rapanos, but in a 4-1-4 vote, the majority split on what approach to use to define government jurisdiction (Greenwire, Feb. 7, 2011).
The draft order would direct EPA to consider relying on Justice Antonin Scalia's plurality opinion in reviewing and potentially rewriting WOTUS. Relying on his opinion would restrict federal jurisdiction. Scalia died last year.
Scalia led conservative justices in arguing the Clean Water Act strictly applied to "navigable waters" connected by a surface flow at least part of the year. The court's four liberals argued for a far more expansive view of the law, saying it should include most wetlands.
Kennedy ultimately sided with conservatives, agreeing to throw out EPA's approach but arguing some wetlands should be covered by the law. In order to qualify for federal protection, he wrote, waters must have a "significant nexus" to actually navigable rivers and seas. That could include biological and chemical connections that remain between waterways even without a consistent flow of water between them.
The Obama administration's WOTUS was written with Kennedy's test in mind – in part to win his vote if the rule were sent to the high court. The George W. Bush administration also relied on Kennedy's decision in crafting its own guidance in 2008.
Both administrations used Kennedy's opinion to pursue enforcement actions, to varying results, with the question of which legal opinion to use being fought over in nearly 80 lawsuits across the country. Federal appeals courts in different circuits have reached different conclusions (Greenwire, Sept. 30, 2015).
No matter what legal opinion the Trump administration uses as a lens for reviewing and rewriting the regulation, it would also have to follow the Administrative Procedure Act. That means the administration would need scientific backing to dispute, among other things, the 408-page technical report that accompanied the Obama regulation.
Slammed by Republican lawmakers as government overreach, the rule was stayed by a federal appeals court while litigation proceeds, including a case filed by then-Oklahoma Attorney General and now-EPA Administrator Scott Pruitt.
Still, Pruitt seemingly celebrated an early victory last weekend, telling the Conservative Political Action Conference on Saturday, "We not only sued, we won. We stopped WOTUS" (Climatewire, Feb. 27).
Reporter Robin Bravender contributed.
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