Waters of the U.S. Rule: Trump Executive Order

Evan Halper reported in Wednesday’s Los Angeles Times that, “President Trump stepped up his attack on federal environmental protections Tuesday, issuing an order directing his administration to begin the long process of rolling back sweeping clean water rules that were enacted by his predecessor.

The order directing the Environmental Protection Agency to set about dismantling the Waters of the United States rule takes aim at one of President Obama’s signature environmental legacies, a far-reaching anti-pollution effort that expanded the authority of regulators over the nation’s waterways.

The contentious rule had been fought for years by farmers, ranchers, real estate developers and other industries, which complained it invited heavy-handed bureaucrats to burden their businesses with onerous restrictions and fines for minor violations.

The LA Times article noted that, “‘It is such a horrible, horrible rule,’ Trump said as he signed the directive Tuesday aimed at the water rules. ‘It has such a nice name, but everything about it is bad.’ He declared the rule, championed by environmental groups to give the EPA broad authority over nearly two-thirds of the water bodies in the nation, ‘one of the worst examples of federal regulation‘ and ‘a massive power grab.'”

However, Mr. Halper pointed out that the process of “erasing” the environmental rule “could take years…[A]nd environmental groups will be mobilized to fight every step of the way.”

Similarly, The New York Times reported on Tuesday that, “[The executive order] will have almost no immediate legal effect.”

The Times noted that, “[The complicated legal process of rewriting the sweeping rule] could take longer than a single presidential term, legal experts said.”

And Wall Street Journal writer Michael C. Bender reported on Tuesday that, “A federal court blocked the water rule in October 2015 until litigation surrounding it is complete. Similarly, Mr. Trump’s intention to repeal the regulation could take years, and will almost certainly face lawsuits from environmental groups and Democratic state attorneys general.”

More broadly, Wednesday’s LA Times article also explained that, “The executive orders are compounded by the administration’s release of a budget blueprint that includes deep cuts at the EPA.

Even if the process of changing the environmental rules is slow, the Trump administration will aim to hasten their demise by hollowing out the agencies charged with enforcing them.

More specifically on the budget angle, a front page article in Thursday’s Washington Post reported that, “The White House has proposed deep cuts to the Environmental Protection Agency’s budget that would reduce the agency’s staff by one-fifth in the first year and eliminate dozens of programs, according to details of a plan reviewed by The Washington Post.”

The Post article pointed out that, “As proposed, the EPA’s staff would be slashed from its current level of 15,000 to 12,000.”

The Washington Post reported on Tuesday that, “The final outcome of Trump’s order could have tremendous implications for the agricultural, real estate, gravel, sand and ranching sectors, as well as for critical habitats for aquatic species and migratory birds.”

Meanwhile, from a more technical standpoint, The Wall Street Journal editorial board explained this week that, “The Clean Water Act applies only to navigable waterways, but the EPA seized on the opening created by Justice Anthony Kennedy in the unfortunate 2006 Supreme Court case Rapanos v. U.S. that split 4-1-4. His controlling opinion invented the ‘significant nexus’ standard that is a classic in judicial ambiguity and which the EPA used to expand government control over private property development.”

Regarding this legal underpinning for the Waters of the U.S. Rule, Associated Press writer John Flesher reported on Wednesday that, “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.”

The AP article added that, “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.”

Farm state lawmakers representing rural populations generally reacted positively to the administration’s executive order.

Omaha World-Herald writer Joseph Morton reported on Tuesday that, “Rep. Adrian Smith, R-Neb., attended the signing at the White House.

“‘The Obama administration refused to listen to the concerns of agriculture producers,’ Smith said in a statement after the signing. ‘I’m glad President Trump is listening. His order to reset WOTUS is a victory not only for farmers and ranchers but for all Americans eager for regulatory relief.'”

Several Senate Ag Committee members shard their reaction to the executive order:

Likewise, some House Ag Committee members also tweeted about the executive order this week:

Keith Good

Keith Good is the social media manager for the farmdoc project at the University of Illinois. He is well known in agricultural circles for the daily FarmPolicy.com News Summary.