By David Pendered
The Trump administration has submitted to the White House a new definition of the “Waters of the United States,” a proposal the Southern Environmental Law Center contends could remove environmental protections from up to 60 percent of the nation’s streams and more than 90 percent of wetlands.
“Time to provide farmers and ranchers nationwide with regulatory certainty!” Scott Pruitt, administrator of the U.S. Environmental Protection Agency, said in a Tweet on June 14.
The SELC’s Blan Holman, managing attorney of SELC’s office in Charleston, S.C., responded in a June 15 statement: “Big polluters are in control and it looks like they want a free pass to dump where they want when they want. We aren’t going to let them turn back the clock.”
The new definition is not yet available for public review, according to a statement by the EPA. The EPA and Department of the Army sent the proposal on June 15 to the Office of Management and Budget, which advises the president. Once an interagency review is complete, the agencies are to issue the proposal for public comment.
The issue is the extent of waters that are governed by the Clean Water Act, of 1972.
The Obama administration redefined the “Waters of the United States,” WOTUS, in a rule issued June 29, 2015. It expanded the scope of protected waters by amount in the range of 2 percent to 5 percent, according to the SELC statement.
The Obama-era rule was stayed nationwide in an Oct. 9, 2015 ruling by the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, Ohio, according to a Feb. 6 entry in the Federal Register.
Pruitt has been a leading critic of the Obama-era rule. Pruitt said it represented overreach by the federal government, according to a June 14 report by abcnewsonline.com:
- “It is all about power. What happened in 2015 the EPA came in and said we are going to define Water of the United States as a puddle, a dry creek bed and a drainage ditch outside of a sub-division. it isn’t just farming and ranching. It is oil and gas. Fundamentally private property owners couldn’t use their land as they have historically.”
Trump signed an executive order on Feb. 28, 2017 that instructed the EPA and the assistant secretary of the Army for civil works to redefine WOTUS. The guiding principle of Trump’s order, titled Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule, states:
- “It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.”
The flurry of statements regarding the new proposal includes:
- “EPA Administrator Scott Pruitt just launched a full-frontal assault on our country’s most vital and time-tested environmental protection. The Clean Water Act has prevented unlimited pollution from contaminating our waterways and drinking water sources for nearly 50 years and has made our rivers, lakes, and coast swimmable and safe. Now Washington wants to take that defense away. Big polluters are in control and it looks like they want a free pass to dump where they want when they want. We aren’t going to let them turn back the clock.”
- “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. 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.”
Assistant Secretary of the Army for Civil Works R.D. James:
- “From day one we have been focused on bringing common sense and fairness back to the rulemaking process. Today’s action highlights our commitment to listening to public input, providing clear and transparent rules, and ensuring that our waters remain clean and our economy can continue to thrive.”
Trump’s executive order appears to envision potential litigation involving the proposal. The order advises the EPA and Army to notify the U.S. Attorney General’s office that the review is pending so that the AG, “may, as he deems appropriate, inform any court of such review and take such measures as he deems appropriate concerning any such litigation pending the completion of further administrative proceedings related to the rule.”