Andrew Wheeler joined me this morning to discuss EPA’s long awaited new rule on what constitutes “Waters of the United States”:
HH: So pleased to welcome onto the program the acting administrator of the United States Environmental Protection Agency, Andrew Wheeler. I always say before I talk about the EPA my son works at EPA, and I like to tell everyone that until this summer, I spent 30 years doing law work on EPA-related matters, especially about what we’re about to talk about – the Waters Of The United States. And I want to do this subject, because for 30 years, I’ve been breaking my pick on the Waters Of The United States. And Acting Administrator Wheeler, welcome. It’s great to have you on.
AW: Thank you, Hugh. It’s great to be on your show. Good morning.
HH: Good morning. When do you expect to have a hearing on your nomination by the President to be the permanent administrator?
AW: Well, hopefully someone in January. The President has said that he’ll send up my paperwork to the Senate as soon as they reconvene. And Senator Barrasso has said that he’ll take up consideration of my nomination. I think he has to have a two week notice for the minority, so sometime in January.
HH: That, well, good luck on that.
AW: Thank you.
HH: I’m sure they’ll be talking about these Waters Of The United States rules. And as I mentioned in the introduction, I’ve been doing this since 1989. I have lots of opinions on WOTUS, but why don’t we start by having you explain what these new draft rules are, and what the notice and comment period anticipates for them.
AW: Sure. And I hope I don’t end up putting you out of business on the consulting side, because my goal for this is so that any property owner can stand on his or her property and be able to tell for themselves whether or not they have a federal waterway on their property without having to hire a lawyer or an outside consultant.
HH: It’s a good thing I retired, because…
AW: And I say that even though I used to be one.
HH: (laughing) It’s a good thing I retired, because that’s how I made all my money for years, is people couldn’t tell.
AW: I know.
HH: And that’s the genius of these rules.
AW: And it is a shame, and it’s not fair to the American people. What we’re trying to do is provide more certainty to them. What we’ve done is we’ve taken a look at exactly what the Clean Water Act says, which is navigable waterways. We looked at the three Supreme Court decisions on this. And we’ve put forward a proposed rule that follows the law that the Obama proposal in 2015 went way beyond the law. They want it to cover everything in the country. You know, the state of Missouri took a look at the Obama proposal and said 95% of their land area would have fallen under the definition of waters under the Obama administration definition. So what we’re trying to do is to have a definition that people can understand easily. And the big difference also is that for the first time, the United States EPA is talking about the fact that there’s a difference between federal waterways and state waterways. If it’s not a federal waterway, almost every other waterway is still protected under state law. We don’t need to have the dual protection and the dual requirements and permits of both state and federal levels. They’re important waterways for our country, and we want to make sure that those are protected. And that’s what this proposal does.
HH: You know, I have never represented a land owner when I practiced, again, I’ve retired, who did not want to do right by waters which are actually interstate and controlled by the Clean Water Act. But when they would find themselves confronted with a member of the Army Corps of Engineers or the EPA’s dedicated staff saying that a road rut or a tire track was in fact a navigable water and a vernal pool which was subject to the jurisdiction of the United States, they would look at me with eyes of complete bewilderment, because nobody in their right mind would believe that, Administrator Wheeler. But that’s where you go if you go one step at a time from the clear legislative demarcation of the Clean Water Act. And now, you’re trying to bring some sanity back. But you have a notice and comment rulemaking as well for people who wish to be involved in this process.
AW: Yes. So our proposal, we’re releasing it today. It will go up on our website either later today or first thing tomorrow morning. We encourage everybody to take a look at it, give us comments, tell us what they think about it. It will eventually be in the federal register. That usually takes a few weeks. And once that’s in the federal register, it will start a 60-day clock for comments. So you know, at this point, we’re guessing that people will have close to 90 days to comment on the proposal once they see it on our website later today or tomorrow. We want people to take a look at it and tell us what they think about it.
HH: You will receive thousands of comments. Almost every significant environmental rule does. And Waters Of The United States is among the most significant. When do you have a fair idea of an expectation of a final rule being published, Administrator Wheeler?
AW: We are hoping that a final rule could be published sometime next summer. When we did a proposal last year just to freeze the Obama proposal, we received over 800,000 comments. So we’re expecting at least 800,000 comments on this, probably over a million comments. It’s going to take us a few months at least to read through the comments that we receive. But we hope to have something final certainly by next summer.
HH: Now there is a part of this that people don’t understand unless they’ve been caught in the trap, is that you need agencies to respond to land owners. Not just your agency, but the Army Corps of Engineers, often the United States Fish and Wildlife Service, and often the press of business weighs down. You’ve been out touring your ten regional offices. I can tell from your Twitter feed that you’ve been out to see every regional office. As you did that, did you emphasize to them the necessity of being responsive to land owners? It is, it is sometimes a black hole. I could, it’s like the black hole of Calcutta, in fact, to try and get rulings out of the Army Corps of Engineers or post-elevation, that’s a term of art that people don’t need to understand, out of the EPA concerning waters delineations. What have you told them about being responsive to the people they are supposed to serve?
AW: You’re right. I have visited all ten regional offices. And when I talked to the employees, and I do all-hands meetings at every regional office. I talk about the need to provide more certainty to the American public. And I talk about certainty in terms of working with the states and local governments. I talk about certainty in terms of our EPA programs, and this is a perfect example of trying to provide more certainty on permits, in enforcement actions. I say on permits, for example, and this falls right along with the WOTUS rule and the Waters Of The U.S., that we need to provide decisions to people, and that’s up or down, yes or no, within a set period of time. Our goal for permits is within six months. I know the, President Trump has a goal for the entire federal government to have all federal permits done within two years. We’re striving for that six months. But what I tell our staff is we owe it to the American public to give them a yes or no within a certain period of time and not leave them hanging for months or years.
HH: I’m talking with Andrew Wheeler, the acting administrator and the nominee to lead the EPA. So I want people to be assured. Traditional navigable waters, interstate waters, tributaries, ditches that are flowing into a water, lakes and ponds, impoundments, the common sense idea of what a Water of the U.S. and what the federal government can regulate is not going to change under these rules. It’s just going to be cabined, as I thought the Supreme Court wanted it cabined in 2006 in Rapanos. Is it fair to conclude by saying here we are, 12, 13 years later, and the EPA is finally going to get around to doing what Justice Scalia suggested they do?
AW: Yes. We are following Justice Scalia’s opinion in the Rapanos case. And exactly, everything that you just mentioned would still be considered a Water of the U.S., as well as adjacent wetlands to any of those examples you just gave. There’s already a lot of misinformation out in the press. The L.A. Times came out with a piece that totally got it wrong. They were quoting some number saying that 60% of the waters would no longer be protected. That’s a made-up number. There’s no backing behind that number. And they say that 80% of the waters in California would no longer be protected. The state of California actually has tighter regulations than the federal government. So all those waters would still be protected. But there’s a difference between what is a federal waterway and what is a state or local waterway.
HH: And that’s central to our understanding of government. Good luck with this.
AW: Thank you, sir.
HH: Good luck with the notice and comment rulemaking, and a Merry Christmas, Happy New Year, and a good confirmation to you.
AW: Thank you, sir. Merry Christmas to you as well.
HH: Thank you.
End of interview.