Trump administration looks to boost case to repeal Obama water rule

The Trump administration acted Friday to try to bolster its case to repeal the Obama administration’s controversial water pollution regulation.

The Environmental Protection Agency (EPA) and Army Corps of Engineers, which administer the Clean Water Act together, first proposed in July 2017 to repeal former President Obama’s Clean Water Rule.

Those agencies put out a “supplemental” notice Friday in which they double down on their previous assertions that the 2015 regulation created significant “uncertainty” and is incompatible with the law and Supreme Court precedent.

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The Friday notice also seeks to clarify that the EPA and Army Corps are proposing to repeal the rule in its entirety, despite a separate action they later took to delay the implementation date of the rule.

The rule at issue, also dubbed Waters of the United States (WOTUS) was written by the Obama administration to clarify that the federal government has the power to protect small waterways like ponds and wetlands from pollution. Opponents, like EPA head Scott Pruitt, argue that it gives the government power over too much land.

“By issuing today’s supplemental proposal, we are responding to public feedback, expanding opportunities for comment, and providing clarity and transparency in the rulemaking process,” Pruitt said in a statement.

“We are making it clear that we are proposing to permanently and completely repeal the 2015 WOTUS rule and keep the pre-2015 regulatory framework in place as we work on a new, improved WOTUS definition.”

The July 2017 proposal asserted that repealing the Obama rule “will provide continuity and certainty for regulated entities, the states, agency staff, and the public,” but provided little rationale for that argument.

In Friday’s notice, the EPA and Army Corps try to boost the rationale, taking into account the various federal courts that have blocked the rule from taking effect, the administration’s argument that it doesn’t align with Supreme Court precedent and other factors.

“The agencies are concerned that rather than achieving their stated objectives of increasing regulatory predictability and consistency under the [Clean Water Act], retaining the 2015 rule creates significant uncertainty for agency staff, regulated entities, and the public, which is compounded by court decisions that have increased litigation risk and cast doubt on the legal viability of the rule,” they wrote.

“Considering the substantial uncertainty associated with the 2015 rule resulting from its legal challenges, and the substantial experience the agencies and others possess with the longstanding regulatory framework currently being administered by the agencies, the agencies conclude that clarity, predictability, and consistency may be best served by repealing the 2015 rule and thus are proposing to do so.”

Supporters of the Obama rule say the new repeal proposal is still flawed.

“Our nation needs clear rules on how to protect lakes, streams, and wetlands from pollution. We will keep fighting Scott Pruitt’s senseless attacks on these protections and work to ensure these important safeguards go into place,” Jon Devine, federal water policy director at the Natural Resources Defense Council, said in a statement.

“He tried and failed to rescind the Clean Water Rule once before, and he’s got no better reason to do it now.”