Trump Kills Another Obama EPA Overreach

Presidents signs executive order to gut rule that treats puddles as navigable waters

by Brendan Kirby | Updated 28 Feb 2017 at 6:08 PM

President Donald Trump on Tuesday moved to kill a notorious Obama-era rule expanding the number of “navigable” waters subject to restrictions under the Clean Water Act.

The Environmental Protection Agency under then-President Obama finalized the Waters of the United States rule in July 2015. Critics complained that it was massive federal overreach that harassed farmers and other landowners with little discernible environmental benefit.

“EPA’s so-called Waters of the United States rule is one of the worst examples of federal regulations and it has truly run amok.”

In a room filled with farmers, home builders, and county commissioners, Trump mentioned a Wyoming rancher who faced fines of $37,000 a day for digging a watering hole for his cattle.

“EPA’s so-called Waters of the United States rule is one of the worst examples of federal regulations and it has truly run amok,” Trump said.

The president said Congress passed the Clean Water Act to ensure the protection of large bodies of water.

“But a few years ago, the EPA decided that navigable waters can mean every puddle or every ditch on a farmer’s land or anywhere else that they decide,” he said. “It was a massive power grab. The EPA’s regulators were putting people out of jobs by the hundreds of thousands.”

The executive order directed new EPA Administrator Scott Pruitt to replace the current rule with one that takes into account a 2006 Supreme Court opinion written by former Justice Antonin Scalia, who defined navigable water as one with a “continuous surface connection.” It would cover a much smaller number of waterways.

Economist Stephen Moore, a Heritage Foundation visiting fellow who served as an adviser to Trump’s campaign, said the Obama-era rule was anti-business and anti-development.

“It was a really ridiculous rule. So, this was good,” he said. “That’s a great rollback of a horrible regulation.”

Members of Congress who have railed against that regulation ever since the EPA implemented it were quick to praise Trump, as well.

“Today’s executive order on the Waters of the United States rule reflects what many Americans already believe: that we can have both clean water and regulations that don’t stifle economic growth and job creation,” Sen. Ted Cruz (R-Texas) said in a statement. “The new staff at the EPA will have the opportunity to ensure that the phrase ‘navigable waters’ maintains its actual, common-sense meaning, and not include puddles and drainage ditches like the regulation-happy bureaucrats at the Obama EPA tried to impose on hard-working farmers and ranchers.”

Rep. Bradley Byrne (R-Ala.) argued Trump’s order would stop a “flawed and overly burdensome” regulation.

“This rule was a direct assault on our farmers and foresters in an effort to satisfy radical activists, and it is no surprise that federal courts expressed deep doubts about its constitutionality,” he wrote in an email to LifeZette. “We need to be looking for ways to get the government off the back of the American people instead of making life harder for them.”

Supporters of the EPA rule argue that it brought consistently and predictability to enforcement of a rule that had been a legal gray area. They maintain that the regulation contained sufficient protections for farmers and ranchers.

It increased the number of waterways subject to automatic Clean Water Act jurisdiction, including:

  • All tributaries that lead to navigable rivers if they have a bed, a bank, and a high-water mark. That included even streams that are dry for part of the year.
  • Wetlands and ponds that are within 100 feet of a protected waterway or within the 100-year floodplain.
  • Some "isolated" waters that are not connected to navigable waters as long as they have a "significant nexus" to protected waters.

Trump said the rule treated small farmers as if they were major industrial polluters. He suggested the repeal is part of an ongoing effort to spur economic growth by cutting red tape.

"We're going to free up our country, and it's going to be done in a very environmental, and positive environmental way, I will tell you that," he said. "But create millions of jobs. So many jobs are delayed for so many years that it's unfair to everybody."

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