Pruitt’s Wacky WOTUS Repeal Do-Over Digs Deeper Legal Hole

Washington, DC, Aug. 14, 2018 — As one of his last official acts, EPA Administrator Scott Pruitt tried to shore up his legally shaky plan to reduce the scope of Clean Water Act by filing a supplemental justification.  Rather than “clarify” matters, his July 2018 filing further muddies the waters and undermines the case for removing legal protections for streams and wetlands, according to public comments filed today by Public Employees for Environmental Responsibility (PEER).

In July 2017, Pruitt unveiled an ambitious plan to dramatically cut the number of streams, ponds, and wetlands protected under the Clean Water Act.  The first step would repeal President Obama’s 2015 “Waters of the United States” (WOTUS) rule increasing the extent of covered waters by between 3 to 5 percent. Pruitt’s repeal proposal generated more than 685,000 overwhelmingly negative comments.  A year later, Pruitt conceded “that it is in the public interest to provide further explanation.”

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Pruitt’s latest stab keeps a highly criticized cost-benefit analysis that erased any benefits from protecting streams and wetlands as too difficult to quantify.  Rather than strengthening EPA’s legal hand, this supplemental filing underlines its flaws and further confuses matters by –

  • Admitting that it lacks data in stating the agency is “not aware of any data that estimates with any reasonable certainty or predictability the exact baseline miles and area of waters covered by” the previous law;
  • Eschewing reliance on science, arguing that “too much emphasis” was placed on science in formulating the 2015 Clean Water Rule, and EPA instead wants to base its new rule on “indicia of Congressional intent”; and
  • Rooting its justification in the need to reduce “significant confusion and uncertainty” even as it compounds confusion and creates total uncertainty about the proposed Step 2 to develop an entirely new rule “consistent with the opinion of Justice Antonin Scalia” in his 2006 dissenting opinion limiting Clean Water Act jurisdiction to waters that are “navigable.”

“In all these months, the Trump EPA has yet to make a coherent, let alone defensible, case that Clean Water Act protections should be weakened,” stated PEER Science Policy Director Kyla Bennett, a scientist and attorney formerly with EPA, noting that the deadline for public comments on Pruitt’s latest filing is this week.  “This supplemental filing appears to violate the Rule of Holes – that is, when you are in one, stop digging.”

EPA estimates that 117 million Americans –  one in three people – get their drinking water from these sources that would lose legal protection under a repeal of the Clean Water Rule.

“With climate change, clean drinking water is even more at risk and of even greater importance,” added Bennett, pointing out that protecting these waters also strengthens flood control and enhances aquatic habitats, among other benefits. “That is why every modern president, including Reagan, has stressed the importance of protecting wetlands – until now.”

Read the latest PEER comments

View the Pruitt supplemental filing

See PEER’s defense of current Clean Water Rule