EPA moves toward rewriting Obama water rule

The Trump administration took a major step Friday toward rewriting an Obama administration water pollution rule in a more industry-friendly way.

The Environmental Protection Agency (EPA) and the Army Corps of Engineers on Friday sent their proposal to redefine “Waters of the United States” to the White House Office of Management and Budget for review. It is the final step before the agencies can release the proposal for public comment.

The Waters of the United States rule, also dubbed WOTUS, defines which bodies of water are subject to federal jurisdiction under the Clean Water Act.

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The Obama rule, written in 2015 and known as the Clean Water Rule, was highly controversial.

It was intended to clarify that small waterways like ponds and headwaters can be protected. But agriculture, developers and other industries complained that it was too far-reaching and would subject huge swaths of land to federal oversight.

“Farmers, ranchers, landowners, and other stakeholders are counting on EPA to listen to their input when it comes to defining ‘waters of the United States,’” EPA Administrator Scott Pruitt said in a statement.

“Today, we are taking an important step toward issuing a new WOTUS definition and answering President Trump’s call to ensure that our waters are kept free from pollution, while promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the federal government and the states under the statutory framework of the Clean Water Act.”

Pruitt’s rewrite is expected to be more industry-friendly, aligning with an executive order President Trump signed early last year that asked the EPA to write a new rule that aligned with what late Supreme Court Justice Antonin Scalia thought should be the definition.

Pruitt’s action on Friday comes as his ethics and spending scandals continue to pile up. His regulatory rollbacks, like the water regulation, have kept him largely in the good graces of Trump, congressional Republicans and conservatives, despite the scandals.

The rewrite of the rule is the second part of a two-stop process Pruitt has planned to repeal and replace the Clean Water Rule. He proposed in June 2017 to repeal the old rule, though he has not made it final yet.

The Clean Water Act mainly covers large, navigable waterways like rivers and bays. But the EPA must also protect some upstream waterways that feed into them.

The Obama rule centered on the concept that waterways with a “significant nexus” to navigable ones would be regulated. That was based on a plurality opinion written by Supreme Court Justice Anthony Kennedy in the 2006 Rapanos v. United States case, which concluded with a messy 4-1-4 vote.

But Scalia’s opinion was that only “relatively permanent” waterways should be covered, which would cover less area than Kennedy’s definition.

The Obama rule was put on hold by multiple federal courts before it took effect.