In a normal year in Washington, Congress’ attempt to pass a near-trillion-dollar budget to partially fund the government would dominate headlines of every major news network. But with the GOP Senate’s infighting over a not-so-skinny repeal of Obamacare, President Donald Trump’s feud with Attorney General Jeff Sessions, Press Secretary Anthony Scaramucci’s feud with Chief of Staff Reince Priebus, and everything Russia-related (including the sanctions now headed to Trump’s desk), the House’s passage an $788 billion spending bill on Thursday night went largely ignored—except for the fact that the legislation provides $1.6 billion for the border wall.
But that same bill could have serious consequences for clean water in the United States. Now headed to the Senate, the “minibus” bill contains a $37.6 billion “energy and water” plan with myriad cuts and provisions that environmental groups loathe, no more so than the attempt to undo the Waters of the United States rule. Better known as WOTUS, President Barack Obama’s controversial regulation was intended to expand Clean Water Act protections to small bodies of water across the country: 2 million miles of streams and 20 million acres of wetlands that flow into drinking water systems for 117 million Americans. Trump has started the process of undoing that rule—and the minibus bill contains a provision that critics say is intended to make sure neither the public nor the legal system can interfere with that repeal process. “They want to do this in the dark without the public or judges getting a say,” said Madeleine Foote, legislative representative at the League of Conservation Voters. “It’s pretty radical and extreme.”
Specifically, the provision in the minibus says the Trump administration “may withdraw the Waters of the United States rule without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.” That means WOTUS repeal would be exempt from the Administrative Procedure Act, which requires agencies to allow the public to comment on regulatory changes. Those changes must then be read and considered by the agency in charge. Technically, public comments on repeal have already started: On Thursday, the EPA published a 42-page plan to dismantle the regulation in the Federal Register. But if the provision becomes law, the EPA won’t have to consider those comments or respond to them.
That worries Michael Gerrard, a professor of environmental law at Columbia University, who told The Washington Post that the comment process is one of the few ways regular people get to participate in the regulatory process. Without it, he said, “only the lobbyists who know how to navigate through the bureaucracies or Congress have a voice... So exempting the WOTUS rule from the Administrative Procedure Act would rob the environmental and public health communities of the formal opportunity to comment and to build a record for review by the courts.”
As the Post’s Dino Grandoni writes, the provision would also “exempt Trump’s efforts to the repeal the WOTUS rule from review by judges through challenges brought by environmental groups”—something environmental groups are particularly displeased about. “Agencies have certain procedures they’re supposed to abide by when repealing rules, and if they don’t, our community will often challenge that in court,” Foote said. “This would shield them from those kind of challenges.”
There was little Democrats could do to stop this rider. They didn’t, however, do everything possible. A Democrat-introduced amendment to strip the minibus bill of the WOTUS provision failed by voice vote, and Democrats did not ask for a roll call vote. That probably would not have changed the decision, but it would have put moderates on record for supporting or not supporting the proposed change in the public comment process for regulations.
WOTUS is undoubtedly a controversial policy. A federal court halted the rule after Obama proposed it in 2015, and thus, it hasn’t taken effect yet. It faced opposition not just from the usual suspects of fossil fuel interests, but from small business organizations, agriculture groups, real estate developers, pesticide manufacturers, and golf course operators. All contended that the regulation constituted federal government “overreach”—that putting federal Clean Water Act protections on streams and other small waterways was too much of an economic burden. If a farmer diverted a small stream, could she be sued? What if a developer filled in a wetland for a building?
But because pollution from small sources like wetlands and tributaries pollution often affects downstream waters, the rule undoubtedly would improve the quality of drinking water systems. That was the rationale behind it: The Obama administration argued that one out of every three Americans gets drinking water from sources connected to small, unregulated bodies of water. A 103-page review of the science behind the rule from the EPA’s independent Scientific Advisory Board determined that protecting these waters would have a real impact on protecting human health.
It’s precisely because this issue is so complicated that it should be put before the public. Obama’s EPA understood that, reviewing more than 400,000 public comments before it finalized the WOTUS rule. If the minibus bill passes the Senate with this provision intact, the Trump administration will not have to do the same.