Executive order issued for review of the @EPA ‘Waters of the US’ rule

Evening clouds along the Yampa River in northwestern Colorado.

From The Denver Post (Bruce Finley):

President Donald Trump’s promised overhaul of environmental rules gained momentum Tuesday as he ordered a review and possible rollback of protections for streams and wetlands – igniting opposition from conservation groups.

The Senate meanwhile is poised to vote on rolling back two other rules passed by the Obama administration to protect public lands and air quality.

Trump’s executive order targets the EPA’s “Waters of the United States” rule, finalized in 2015, that reinterpreted the Clean Water Act to extend federal protection to small and seasonal waterways. These are critical for water supplies in water-scarce regions of the West.

EPA officials have said the rule will have the greatest impact in states such as Colorado where protection for small and seasonal water previously was uncertain. In Colorado, 68 percent of streams are seasonal.

The EPA insisted the rule wouldn’t get in the way of agriculture or require new permits and that the benefit was giving federal officials power to crack down on polluters.

But some Colorado farmers, a national coalition of industry groups, developers, and fertilizer and pesticide makers have fought the rule. They said it could lead to EPA enforcers looking over producers’ shoulders.

The rule was made to end uncertainty created by Supreme Court decisions in 2001 and 2006 that left small streams, headwaters and wetlands in limbo. Killing it could remove protection for streams and wetlands that are seasonal, or rain-dependent, and that affect downstream waters…

Natural Resources Defense Council President Rhea Suh issued a statement accusing Trump of protecting polluters instead of water and said rolling back the rule would threaten drinking water sources for 117 million Americans.

“The Clean Water Rule’s safeguards are grounded in science and law. The rule was developed over many years, after more than 1 million public comments. We all rely on healthy wetlands to curb flooding, filter pollutants, support fish, waterfowl and wildlife, and feed our rivers and lakes,” Suh said. “We will stand up to this reckless assault.”

Hunters and anglers appealed to Trump to reverse course and keep the rule. “Sportsmen will not settle for watered-down protections or negligence for the habitat that supports the fish and wildlife we love to pursue,” Theodore Roosevelt Conservation Partnership president Whit Fosburgh said on behalf of a five-group coalition.

The American Sustainable Business Council, representing 250,000 businesses, issued a statement saying that “undoing this critical environmental rule is naive” and that doing so “will actually hurt most businesses and put jobs in jeopardy.”

Later this month, the Senate is expected to vote on a House of Representatives-backed effort to kill a federal rule giving Americans more of a voice in large-scale planning for projects using public land, including 8.4 million acres in Colorado.

Senators also are to vote on a House-backed reversal of the new federal methane rule that requires oil and gas companies using public lands to control air pollution. In both strikes against Obama administration environmental regulations, lawmakers have invoked the Congressional Review Act that lets them roll back executive action taken during the past 60 legislative work days if the rule is shown to impose excessive costs, exceed agency authority or duplicate existing rules.

From the Associated Press (John Flesher) via KOAA.com:

Trump instructed the EPA and the Army Corps to “rescind or revise” the rule, which can’t be done quickly or easily. The Obama rule hasn’t taken effect because of the dozens of lawsuits pending in the 6th U.S. Circuit Court of Appeals in Cincinnati. Separately, the Supreme Court is considering whether the 6th Circuit should have jurisdiction over those cases. Legal experts say the Trump administration likely will attempt to have the suits dismissed while it crafts a new regulation.

The president’s executive order requires the agencies to follow the guidance of the late conservative Justice Antonin Scalia in producing a new definition of protected waters. In a 2006 opinion, Scalia interpreted federal jurisdiction narrowly, saying only “relatively permanent, standing or continuously flowing” waters or wetlands with a surface connection to navigable waterways were covered.

After proposing a new rule, the agencies would have to take public comments and consider them when putting together a final version. Environmental groups would be certain to challenge a rule based on the Scalia standards, saying it ignores scientific evidence.

“This is likely to take years,” said Jan Goldman-Carter, an attorney for the National Wildlife Federation.

From The Fort Collins Coloradoan (Jacy Marmaduke):

Environmental law experts say the order has little legal significance, but it still prompted strong reactions from both sides of the issue.

Issued Tuesday, the order directs the Environmental Protection Agency and the U.S. Army Corps of Engineers to rescind or revise a 2015 EPA rule that sought to expand federal jurisdiction under the Clean Water Act. The act allows the EPA to regulate “waters of the United States” but doesn’t include a precise definition of that term.

So with a rule finalized in 2015, the EPA opted for a more exact definition of “waters of the U.S.” that includes seasonal streams and wetlands adjacent to those streams, among other things. The 2015 definition would expand Clean Water Act jurisdiction by an EPA-estimated 3 percent.

It’s not yet clear how much jurisdiction would be expanded in Colorado.

Opponents of the rule fear it would actually increase Clean Water Act jurisdiction by a far greater margin than 3 percent, creating more red tape for farmers, ranchers and developers at a questionable environmental benefit. EPA administrator Scott Pruitt, who led a multistate lawsuit against the rule, once called it “the greatest blow to private property rights the modern era has seen.”

[…]

In his executive order, Trump asks the EPA and Army Corps of Engineers to model their revised water rule off a minority opinion penned by former Supreme Court Justice Antonin Scalia, who argued seasonal streams shouldn’t be protected under the Clean Water Act.

That would mean 60 percent of U.S. streams and 20 million acres of wetlands would lose Clean Water Act protection, according to Trout Unlimited. That would be “an unmitigated disaster” for fish and wildlife, hunting and fishing, and clean water, Trout Unlimited President and CEO Chris Wood said in a statement…

The American Farm Bureau Federation applauded Trump’s move to “ditch” the water rule, which the bureau has argued could extend government regulation at the expense of farmers and ranchers…

Two Colorado State University water experts weighed in on the implications of rolling back the water rule in a Monday blog post.

Withdrawing or weakening the water rule will “likely leave regulators interpreting case-by-case” whether certain waterways are covered under the Clean Water Act and leave “land and water owners guessing about what they can do with their resources,” according to the post by Colorado Water Institute Director Reagan Waskom and CSU senior research scientist and scholar professor David J. Cooper.

” … In the end, repealing the rule won’t answer the underlying question: how far upstream federal protection extends,” they wrote.

Trump’s order isn’t enough on its own to “undo” the rule, which is stalled pending litigation.

“It’s like the president calling Scott Pruitt and telling him to start the legal proceedings,” Richard L. Revesz, a professor of environmental law at New York University, told the New York Times. “It does the same thing as a phone call or a tweet. It just signals that the president wants it to happen.”

Rather than waiting for the rule to snake through the court system in hopes of eventual Supreme Court defeat, the order indicates that Pruitt will likely ask a judge to pause the court proceedings while he and the EPA work on a replacement for the water rule.

Pruitt has said he plans to replace the water rule with something else, but whatever he comes up with will have to stand up to a lengthy public comment period and likely litigation.

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