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By Susan M. Kirsch

President Trump’s February 28, 2017, Executive Order (E.O.) directing the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) to rescind and replace the Clean Water Rule (CWR) is the latest development in the attempt to resolve the long-standing question of which surface waters and wetlands may be federally regulated and subjected to permitting under the Clean Water Act (CWA).  Critics of the CWR assert that it would have drastically expanded the reach of the CWA and created regulatory uncertainty around land features and water features that were not previously considered WOTUS, such as dry creek beds, ditches, and isolated wetlands.  Since 2011, pesticide applications into, over, or near WOTUS are permitted under the CWA National Pollutant Discharge Elimination System (NPDES) Program due to a 2009 U.S. Court of Appeals for the Sixth Circuit ruling.  Agricultural producers and pesticide applicators have opposed the permitting largely on the grounds that it is duplicative and unnecessary to regulate pesticides applied in accordance with the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  Although the CWR would have arguably expanded the scope of the waters requiring pesticide permitting, the replacement or elimination of the CWR will not end NPDES requirements for pesticides.  Opponents continue to push for legislation that would eliminate all CWA permitting for FIFRA-compliant pesticide applications.  More details on the NPDES permit for pesticides is available in our blog item EPA Issues Final 2016 NPDES Pesticide General Permit.

Additional information on the anticipated fate of WOTUS, as well as a summary and comparison of some of the key concepts and provisions within the CWR are available in our memorandum What’s Next for “Waters of the U.S.” (WOTUS)?


 

By Lynn L. Bergeson, James V. Aidala, and Margaret R. Graham

On February 2, 2017, Dominic J. Mancini, Acting Administrator of the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) issued interim guidance in a questions and answers format (Q&A) to implement President Trumps’s recent Executive Order (EO) regarding the costs of agency rulemaking, Memorandum:  Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, Titled “Reducing Regulation and Controlling Regulatory Costs.”  More information on the EO is available in our blog item EPA Issues Report to Congress on Implementing Amended TSCA Provisions, President Trump Issues Memo and Order on Reducing Federal Regulations.

The OMB memorandum, issued for regulatory policy officers and executive departments and agencies and managing and executive directors of certain agencies and commissions, states that it explains three requirements specified in the EO:

  1. That every agency must identify two existing regulations to be repealed when they promulgate a new rulemaking;
  2. That there can be no incremental costs (no greater than zero) for any new regulations or for the repeal of any regulations for fiscal year (FY) 2017, unless otherwise required by law or consistent with advice provided in writing by the OMB Director; and
  3. In furtherance and in relation to # 1, if there are any new incremental costs, they will be offset by the elimination of the existing costs of at least two prior regulations.

Agencies planning to issue one or more significant regulatory action on or before September 30, 2017 (the end of FY 2017), are directed to provide:  (1) “[a] reasonable period of time before the agency issues that action, identify two existing regulatory actions the agency plans to eliminate or propose for elimination on or before September 30, 2017”; and (2) “[f]ully offset the total incremental cost of such new significant regulatory action as of September 30, 2017.” 

The memorandum’s Q&As cover 23 questions under three categories:  Coverage; Accounting Questions; and Process and Waiver Questions.  A few of the stated answers include:

  • The requirements only apply to significant regulatory actions issued between noon on January 20, 2017, and September 30, 2017;
  • New significant guidance or interpretive documents will be addressed on a case-by-case basis;
  • Regulatory actions issued before January 20 that are vacated or remanded by a court after that date will not qualify for savings, but regulatory actions overturned by subsequently enacted laws will qualify, on a general basis;
  • Costs should be measured as the opportunity cost to society, and be annualized as defined in and in accordance with OMB Circular A-4, a Memorandum on Regulatory Analysis issued in 2003;
  • Regulatory actions should be eliminated before or on the same schedule as the new regulatory action they offset (to the extent feasible);
  • Regulatory savings by a component in one agency can be used to offset a regulatory burden by a different component in that same agency; and
  • An agency that is not able to generate sufficient savings to account for its regulatory actions may submit a request to the OMB Director to request a transfer of savings from another agency. 

Commentary

This guidance about the meaning and implementation of the EO will provide greater direction to the broad goals of the Trump Administration’s desire to “reduce regulation.”  On its face, this “2 for 1” directive is a clear message to the agencies to reduce the regulatory burdens of their work, mostly regardless of the particular mission or underlying legislative requirements of the affected programs.

One obvious target of such effort is the U.S. Environmental Protection Agency (EPA), widely criticized during the Trump campaign and in the party platform as causing harm to the economy and hindering economic growth.  Like any broad campaign rhetoric that becomes more substantive as the specifics are rolled out, it is interesting to see what the possible exceptions are or to speculate where implementing the broad rhetorical goal will lead to unpredictable outcomes.  An example might be how reductions in record-keeping costs in one EPA program might offset new regulatory costs in another:  this ironically may give new internal value to some parts of EPA which have routinely been more heavy-handed in imposing regulatory requirements.  “Burdensome and unnecessary” requirements imposed by the enforcement office may be of help in the ability to propose new water program regulations -- or any number of odd fellow combinations may come to the surface. 

Other unanticipated consequences will also include those regulations that are actively supported by the affected regulated entity.  The pesticide industry is one example where a regulation establishing the allowable amount of a pesticide used on food -- the tolerance -- is essential for completing the registration process allowing the use of a new pesticide.  So this kind of regulation fosters innovation and economic return to the industry, and without this regulation, the product will not make it to market.  So the new Administration policies must allow for and distinguish between a sort of “good” regulation and a “bad” regulation -- all fitting within the broad rhetorical directive of a “2 for 1” approach to reducing regulatory burdens.