EPA seeks governors’ input in rewriting Obama water rule

The Trump administration is reaching out to state governors for help in rewriting former President Barack Obama’s controversial water pollution rule.

Environmental Protection Agency (EPA) head Scott Pruitt, along with acting Assistant Secretary for the Army Douglas Lamont, sent a letter Tuesday to governors asking for their “input and wisdom” on what bodies of water should be regulated by the federal government in the Clean Water Act.

Following an executive order President Trump signed in February, the EPA and the Army Corps of Engineers are working on a two-step process to rewrite the Obama regulation known as the Clean Water Rule, which asserted federal power over small bodies of water such as wetlands and stream headwaters.

{mosads}The agencies are first formally repealing that rule, and will then write a new version with a smaller reach to define the jurisdiction of the federal Clean Water Act.

The Trump administration officials said they are prioritizing the role of states throughout the process, something they have accused Obama of not emphasizing.

Thirty-one states — mostly led by Republicans — sued the Obama administration to stop the 2015 rule, joining with business and industry groups.

“EPA is restoring states’ important role in the regulation of water,” Pruitt said in a statement.

“Like President Trump, I believe that we need to work with our state governments to understand what they think is the best way to protect their waters, and what actions they are already taking to do so. We want to return to a regulatory partnership, rather than regulate by executive fiat.”

The Tuesday letter went to the governors of each state and U.S. territory.

“We believe this is an important step in the process prior to proposing regulations that may have implications on federalism,” Pruitt and Lamont wrote.

The February executive order asks the agencies to write their new rule in the framework laid out by the late Supreme Court Justice Antonin Scalia in Rapanos v. United States, and Pruitt and Lamont told the states they are carrying out that mission.

Scalia said in a 2006 plurality opinion that the Clean Water Act should only cover waterways that are “relatively permanent.”

Scalia’s opinion was only joined by four justices, and subsequent federal court decisions have not relied on that test. So the Obama administration instead followed a separate concurrence by Justice Anthony Kennedy, who concluded that waters with a “significant nexus” to navigable waterways should be covered.

The EPA started the outreach process to states last month in a meeting with state and local environmental regulators, during which EPA officials discussed possible approaches to the new rule under Trump’s executive order.

The administration plans to eventually propose a formal regulation to enforce its new definition, at which point it will invite public comments, making any necessary changes and then make the rule final.

A federal appeals court put a hold on the Obama rule in 2015, blocking its enforcement before it could take effect.