When Scott Pruitt appeared last June before House appropriators to discuss the budget proposal for his agency, he made a bold pronouncement: “We will have a final rule that will provide a definition for ‘waters of the United States’ by the fourth quarter of this year, no later than the first quarter of next year, because that’s the job of the agency.”
But the first quarter of 2018 has come and gone, and Pruitt’s EPA – working with the Army Corps of Engineers – is still mired in the process of responding to hundreds of thousands of comments on its proposed repeal of WOTUS, and is facing court challenges to its rule delaying the effective date of WOTUS until February 2020 – a move designed to give it time to come up with a replacement.
Pruitt told the Senate Environment and Public Works Committee in January that a proposed rule to redefine WOTUS would be forthcoming in April or May, with a final rule by the end of the year. But even that now looks ambitious; last week, EPA’s acting director of the wetlands division, John Goodin, predicted that a proposal would go to the Office of Management and Budget in a month or two.
Given the controversial nature of the issue, OMB's review is unlikely to be quick. Goodin, who made his remarks at an Association of State Wetland Managers (ASWM) meeting in Maryland last week, laughed when asked how long OMB would need to look at the proposal before clearing it for the Federal Register. He added that when it appears, the proposal would likely carry with it a 90-day comment period.
Also at the ASWM meeting, Julie Anastasio, executive director and general counsel at the Association of Clean Water Administrators, summed up the current situation. “The administration wants to give us certainty, but we still do not know clearly where the (jurisdictional) boundaries are,” she said. Legal and regulatory uncertainty remain, as well as the as-yet unspecified role science will play in devising a new WOTUS rule.
EPA, however, made a move last week that could slow the process down even more. It sent a “supplemental proposal” to OMB for review. The agency did not say exactly what the new proposal is supposed to do, only that its purpose is “to provide the public with additional clarity on the scope of the agencies’ efforts" related to WOTUS.
"Being responsive to feedback from the public is exactly how an open and transparent rule development process is designed to work," EPA said.
Don Parrish, senior director of regulatory relations at the American Farm Bureau Federation, said he believes the new proposal is meant to address some of the legal shortcomings of the proposed repeal.
Don Parrish, AFBF
“We thought the initial proposal could have been much stronger,” Parrish said. “We were extremely sensitive to and concerned about the objections raised" by environmental groups such as the Natural Resources Defense Council and Waterkeeper Alliance, which said the proposal did not provide meaningful opportunity for public comment or adequately discuss the basis for repealing the rule, which was supported by thousands of pages of scientific analysis.
“They didn’t have enough detail” in the proposal, Parrish said. “They didn’t give the public everything they needed to comment on.”
“This is a priority for the American Farm Bureau Federation,” he said. “The administration has to pay more attention to the details of the administrative process. The Farm Bureau’s “message to the administration is, 'You better do it right – don’t rush it,'” Parrish said.
In their comments, Waterkeeper and other conservation organizations said that despite its significance, the proposed repeal rule, “a mere 11 pages long,” does not include “meaningful information regarding the agencies’ rationale and legal justification for withdrawing the (Clean Water Rule) or replacing the CWR with different definitions of ‘waters of the United States.’”
Longtime wetlands attorney Jan Goldman-Carter of the National Wildlife Federation said the “most logical” reason for EPA and the Corps publishing a supplemental proposal is because they recognize the legal vulnerability of the repeal process. EPA and the Corps should have fully laid out their reasons for reversing the position of the Obama administration, she said.
Goldman-Carter took note of the burgeoning number of administrative actions associated with the Clean Water Rule – including the proposed repeal, a change in the effective date of WOTUS and now the supplemental proposal.
“It’s unclear how many of these steps they intend to follow through on,” she said. “By their own acknowledgment they have a lot of work to do.”
In a court case in North Dakota where 14 states and a host of industry groups, including AFBF and commodity groups, are seeking to invalidate the 2015 WOTUS rule, a judge said recently that “replacement of the WOTUS Rule cannot be considered a foregone conclusion.”
U.S. Magistrate Judge Alice R. Senechal’s March 23 order telling the parties to come up with a plan to proceed with the litigation quotes the federal government as saying it is working “as expeditiously as possible to complete the reconsideration rulemaking process” and that it expects to complete the process in “no more than two years.”
The state plaintiffs, in asking the judge to lift a stay that had prevented the case from proceeding, did not seem optimistic about a quick resolution to the WOTUS definitional issue. “Whether, and if so, when and how the WOTUS Rule may ultimately be changed is undeniably uncertain and will probably not be resolved for years,” they said in court papers.
For Parrish, the delays are frustrating to his members. “I wouldn’t call it impatience, but I would say they’re ready to see some action,” he said.
Shortly after Donald Trump became president, he issued an executive order to rescind WOTUS and replace it with a new rule “inspired” by late Supreme Court Justice Antonin Scalia’s opinion in the 2006 Rapanos decision, EPA's Goodin told the Wetland Managers group last week.
Scalia concluded that “on its only plausible interpretation, the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] … oceans, rivers, [and] lakes.’"
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