The last month and a half of Donald Trump’s presidency has been a chaotic rush to change rules and regulations he does not like. Every day there is something new to chart and figure out. Trump has continued to churn out executive orders one after the other. The latest executive order is one that induces environmental regulators to rescind or revise the Clean Water Rule, a regulation authored by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers in 2015 under the Obama Administration.
The Clean Water Rule
The rule attempts to clearly define those waters protected by the Clean Water Act (CWA). It protects waters adjacent to rivers, lakes and their tributaries; and includes ditches that “are constructed in tributaries or are relocated tributaries or, in certain circumstances drain wetlands, or that science clearly demonstrates are functioning as a tributary.” This bears significance because, upon signing the executive order, Trump declared, “A few years ago the EPA decided that navigable waters can mean nearly every puddle or every ditch. It was a massive power grab.” However, only certain ditches are protected and some are explicitly excluded, including those which appear only after rainfall, i.e. puddles.
Method in the Madness
It’s clear that Trump and his administration intend to remove as many regulations as possible and to do everything in their power to rescind environmental protections. After all, Scott Pruitt, the new head of the EPA has sued the organization, which he now runs, over a dozen times targeting the CWA specifically.
What Critics Seem to Ignore
The Executive Order also asks federal courts to halt lawsuits related to the Clean Water Rule while the review is underway. Critics of the rule are eager to have it rescinded as they believe its interpretation is too broad. The Rule, in their view, extends beyond the domain of “navigable waters,” which is supposedly the limit of the EPA’s jurisdiction according to some interpretations of statute. However, critics ignore precedent set by the Supreme Court in 1985 (United States v. Riverside Bayview Homes, 474 U.S. 121), which accepts a definition of the waters of the United States that considers adjacent wetlands to be “inseparably bound up” with nearby waters. Similar definitions were upheld by the Supreme Court in 2001 and 2006. Of course, none of this will abate the desires of the interested parties who would benefit from a narrower interpretation of statute.
The Projected Timeline
All of this should be taken in stride, as a review of this magnitude would take quite a long time. The rule itself took two years to write, and rewriting it could take just as long if not longer. Moving forward industry and environmental groups will follow with interest the Trump administration’s efforts to remove other environmental protections.
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