President Trump will order the Environmental Protection Agency (EPA) on Tuesday to formally review former President Obama’s Clean Water Rule, kicking off the process of eliminating or significantly changing the rule.
The executive order is the first step toward fulfilling one of Trump’s key campaign promises, repealing a regulation that’s been a top target for Republicans and numerous business interests.
It is also the first regulatory action he has taken specific to the EPA, with more actions likely to come to roll back Obama’s aggressive environmental agenda.
A senior administration official told reporters Monday that the order would not rescind the waterways rule, because that has to be done through a formal regulatory process.
Instead, the order will instruct the EPA and the Army Corps of Engineers to formally reconsider the rule, which could lead to its repeal or a significant rewrite.
The official said Trump can’t legally prejudge the outcome of the rulemaking process, which could take well over a year to complete.
The 2015 regulation, also known as Waters of the United States, asserts federal power over small waterways such as wetlands, headwaters and ponds, requiring Clean Water Act permits for any actions that could harm or pollute them. The Obama administration said 117 million Americans’ drinking water relies on those waterways.
The rule is currently on hold. The Court of Appeals for the 6th Circuit, based in Cincinnati, ordered it halted in 2015 while numerous lawsuits challenging the rule wind their ways through the court system.
Scott Pruitt, the current EPA head and former attorney general of Oklahoma, led one of the lawsuits.
To Republicans and industries such as agriculture, developers and energy companies, the rule would have added a major new burden by requiring costly permits for numerous land uses. Opponents say its definitions are so broad that puddles could be put under federal control.
“The problem with the Obama administration’s [Waters of the United States] rule is that it vastly expands federal jurisdiction into state and local areas of land use,” the administration official said. “It vastly expands federal jurisdiction over state waters and we think, in looking at it, it could potentially violate the Supreme Court decisions.”
The order specifically asks the agencies to consider what the late Supreme Court Justice Antonin Scalia wrote in the 2006 case Rapanos v. United States, saying the Clean Water Act ought only to cover navigable waters and waterways “with a continuous surface connection” to them — a far more restrictive definition than what the Obama EPA put into its rule.
The official said the EPA will also be instructed to ask the 6th Circuit court to put the litigation against it on hold while the administration reviews it.