The Trump administration's next big step toward repealing the controversial Waters of the U.S. (WOTUS) rule is official, with a proposal to rescind the Obama-era regulation appearing in the Federal Register on July 27, setting off a relatively short comment period that will end Aug. 28.
The action, by the U.S. Environmental Protection Agency and Army Corps of Engineers, was expected, though slightly delayed, after President Trump ordered a review of the rule in February.
The water regulation is just one of several hundred regulatory actions that the administration has on its agenda, including other rules that are important to the construction industry.
The administration has not given any indication about when it will finalize the repeal of WOTUS. But it will have little to no impact on Clean Water Act implementation, because it will maintain the current case-by-case procedure for determining which waters are under federal jurisdiction under the clean-water statute.
"It's not super complicated," says Scott Berry, Associated General Contractors of America (AGC) director of utility infrastructure, environment and trade. "It's repealing the old rule that never went into effect except for [in] a few states. No enforcement actions were taken under this 2015 rule."
Environmental groups, however, say the month-long comment period is too short, and a repeal of the rule is bad for water quality.
"The Clean Water Rule provides the clarity we need to protect clean water. Its repeal would make it easier for irresponsible developers and others to contaminate our waters and send the pollution downstream," Rhea Suh, president of the Natural Resources Defense Council, said.
The real battle, however, will come in the crafting of a new clean-water rule.
In its spring regulatory agenda, announced on July 20, the administration says it will propose a new rule to clarify jurisdictional waters under the Clean Water Act by the end of the year. The agenda doesn't provide any further timeline on the envisioned replacement, but it's likely to take several months, if not years, to be issued in final form.
Under the current rule, federal agencies determine jurisdiction case-by-case, based on whether a small water body, such as a stream or wetland, would affect a downstream navigable waterway.
A Trump executive order issued in February directs agencies to steer away from that definition and toward one endorsed by the late U.S. Supreme Court Justice Antonin Scalia that would give the Environmental Protection Agency and the Corps of Engineers authority over non-navigable waters only if they have a relatively permanent flow and continuous connection with a navigable waterway.
"The real fight will be over the content of the new rule," Berry says.
In addition to the WOTUS rule, the administration's spring unified agenda—a semiannual look at pending regulations that the administration has renamed the "regulatory accountability project"—highlights dozens of pending rules that are being postponed, delayed or withdrawn.
Office of Management and Budget Director Mick Mulvaney said in a press briefing that the administration is withdrawing or suspending 860 pending regulations. Of those, 469 Obama-era proposals are being withdrawn; another 391 are being recategorized as long-term or inactive.
Among the actions noted in the regulatory agenda:
- The U.S. Occupational Safety and Health Administration (OSHA) signaled the withdrawal of regulatory efforts regarding: an injury-and-illness prevention program, noise in construction, combustible dust, and preventing backover injuries and fatalities.
- OSHA did not provide details about plans for its construction silica-exposure standard, whose enforcement date the agency has delayed by three months, to Sept. 23. AGC says it will remain involved in its legal fight against that rule.
- The EPA will issue a proposed rule governing lead and copper levels in drinking water in January and finalize the rule in July 2019. The rule has been under review since 2007 and there is pressure to revise it, especially in light of the Flint, Mich., lead crisis. But the Trump administration is extending the rule's timeline by about six months.
- The EPA will withdraw the Clean Power Plan and carbon dioxide emissions standards for new and modified power plants on grounds that they exceed statutory authority under the Clean Air Act. The agency did not provide a timeline for the withdrawals.
- The EPA will issue ozone standard-attainment designations by October 2018 and attainment designations for the 2010 sulfur-dioxide standard as required by court order.
- The Dept. of Energy is planning to propose a rule by December to ease the application process for "small scale" natural gas exports, including liquefied natural gas.
- DOE is examining whether to turn to a more "market-based" approach for energy-efficiency standards, including averaging, trading and fee-based approaches. However, the agency is moving forward with pending efficiency standards later this year.
Industry groups, including AGC, have welcomed the administration's actions.
"On the whole, the Trump administration has slowed the federal regulatory machine. In the first five months of 2017, the administration's regulatory efforts produced quantifiable annualized cost savings estimated at $22 million, compared to $6.8 billion in annualized costs due to rules finalized during the last five months of fiscal year 2016," AGC said in a recent regulatory update.