House and Senate Republicans have inserted language into spending bills aimed at blocking legal challenges to the Trump administration’s effort to repeal a 2015 water protection rule that gave two federal agencies broad leeway in regulating activities that could affect streams and tributaries.
Environmental Protection Agency Administrator Scott Pruitt, who challenged the rule in federal court when he was Oklahoma’s attorney general, has made repeal of Waters of the United States (WOTUS) a top priority. He traveled to Kentucky on Thursday to meet with Gov. Matt Bevin (R) and members of the Kentucky Farm Bureau Federation, in part to discuss how to rewrite the rule. Both the EPA and U.S. Army Corps of Engineers would carry out the regulation.
“Farmers and ranchers are some of the nation’s first environmentalists,” Pruitt said in a statement.
President Trump signed an executive order in February instructing the agencies to abolish the rule, which formally extended federal jurisdiction over roughly 60 percent of the nation’s water bodies, and to instead fashion a new rule based on a narrower definition of the government’s authority under the 1972 Clean Water Act. The law gave the two agencies control over navigable rivers and interstate waterways, but a series of court rulings left the extent of that power murky.
The Obama administration sought to clarify federal jurisdiction by finalizing WOTUS, but agriculture groups, real estate developers and some industry associations said the regulation put costly and unnecessary constraints on their operations.
Conservationists and some sporting groups have questioned the Trump administration’s approach to unraveling the rule, arguing that officials have deliberately ignored hundreds of millions of dollars in benefits that would accrue to the public each year if it remained in place.
If enacted, the language in the bills funding the EPA’s operations for fiscal 2018 could make it harder for those groups to challenge the administration’s action in federal court. The identical provisions authorize the EPA and the Army Corps to pull back the rule “without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.” Legislative experts say this could block challenges filed under the Administrative Procedures Act, which not only requires agencies to solicit comment but to lay out the basis for their regulatory actions in the public record and demonstrate that they have not favored a particular group or individual in making their decision.
The new wording “basically says, procedure be damned,” according to Eric Schaeffer, executive director of the Environmental Integrity Project.
The two agencies signed the proposed repeal in late June and published it in the Federal Register on July 27. Schaeffer noted Thursday that Pruitt held at least 17 private meetings with agribusinesses, farm groups and other industries to discuss the rule between July 6 and Oct. 20. No record of those sessions or of the administrator’s remarks has been posted publicly.
“Why have a notice-and-comment period if you’re going to spend your entire summer with industry?” he asked.
EPA spokeswoman Liz Bowman said in an email that Pruitt has solicited input from the citizens who have been most affected by the rule. “In addition to the ongoing stakeholder meetings at the agency, Administrator Pruitt has been to over 25 states, talking to stakeholders across the country, especially farmers and ranchers who have been directly impacted by Obama’s WOTUS rule,” she said.
Kentucky Farm Bureau President Mark Haney praised Pruitt in a statement for coming to Louisville and discussing his plans to eliminate some of the regulations put in place by the previous administration. “Administrator Pruitt, a fellow Kentuckian, knows the hard work our farmers put in on a daily basis to keep our farms financially and environmentally sustainable,” Haney said.
Aides to both the Senate and House Appropriations committees said that the language is aimed at achieving a long-standing Republican policy priority. Stephen Worley, a spokesman for the Senate Appropriations Committee, said in an email that “this provision would allow for the administration to rewrite this flawed rule without unnecessary delay.”
EPA officials said they did not request the legislative language.
Republicans and Democrats have argued about several aspects of WOTUS, including how much action states were already taking to protect smaller streams and tributaries and how much value the public places on wetlands and other water bodies. The rule says that wetlands and tributaries must be “relatively permanent” — a phrase used in previous court opinions, which also means they can be intermittent. Relying on the Supreme Court’s 2006 Rapanos v. United States decision, the rule allows the government to intervene when there is a “significant nexus” between large water bodies and smaller ones.
But Trump instructed his deputies to craft a rule based on a dissenting opinion in that case, in which Justice Antonin Scalia argued the rule should only apply to “navigable waters.”
The two sides have also differed on how to calculate the costs and benefits of regulating such a wide swath of the nation’s water bodies. When the EPA issued the rule, it said roughly 117 million Americans relied for drinking water on streams that lacked clear protection, and the agency estimated that WOTUS would generate $339 million to $572 million in benefits annually. But the EPA’s top economist, as well as the American Farm Bureau, have questioned that calculation.
Yogin Kothari, Washington representative for the Union of Concerned Scientist’s Center for Science and Democracy, said that Republicans were effectively seeking to “blunt the tool” that Pruitt and other conservatives used to challenge regulations they opposed under Democratic administrations.