On Tuesday, President Trump will sign an executive order that will direct federal agencies to channel the wisdom of late Supreme Court Justice Antonin Scalia in reconsidering an Obama administration rule that expanded Washington’s jurisdiction over state and local waterways under the Clean Water Act. According to a senior White House official, the president will sign an order that could result in eventual repeal of former President Obama’s “Waters of the U.S.” executive order, a target of complaints from businesses and landowners.
In an unusual directive, Trump will order the EPA and the Army Corps of Engineers to consider in particular a 2006 opinion by the late Supreme Court Justice Antonin Scalia, who wrote that the “Waters of the United States” should cover only permanent, standing or continuously flowing bodies of water because, he said, that was the definition of “the waters” in Webster’s Dictionary.
The Trump order will instruct the EPA and the Army Corps to “review and reconsider” the Obama order.
ICYMI: President Trump on Tuesday to sign executive order repealing EPA water rule, as promised on campaign trail. https://t.co/56YGUFvyWU
— Amy Harder (@AmyAHarder) February 28, 2017
The Obama administration, which expanded the scope of the Clean Water Act, giving federal agencies authority over the “waters of the U.S.,” won praise from environmental groups but opposition from farmers, ranchers and other landowners, who argued that the definition sowed confusion and heightened the risk of regulatory non-compliance by including minor bodies of water such as small agricultural ditches and ponds.
In a statement, the American Farm Bureau Federation said, “The rule defines terms like ‘tributary’ and ‘adjacent’ in ways that make it impossible for farmers and ranchers to know whether the specific ditches, ephemeral drains or low areas on their land will be deemed ‘waters of the US,’”
“But these definitions are broad enough to give regulators (and citizen plaintiffs) plenty of room to assert that such areas are subject to CWA regulation,” said the bureau.
As many as thirty-one states have challenged the rule in court, accusing the Obama administration of federal overreach, while the House Oversight and Government Reform Committee issued a report in October calling the order “a case study in legal shortcuts, predetermined conclusions, and politically motivated timelines.”
In a February 11 op-ed, David Strayer, a freshwater ecologist with the Cary Institute of Ecosystem Studies, argued that scaling back the Obama-era expansion “would allow agriculture to pollute more waters and roll out the red carpet for other polluters.”
“And we would be left paying the price, as the quality of drinking water degrades, beaches close, lakes and rivers fill with algal scums, waterfront businesses and property values suffer, and fish, birds and other wildlife disappear,” said Mr. Strayer in the Albany [N.Y.] Times Union.