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Regulatory Uncertainty Reigns in DC

Following through on yet another of his campaign promises, the President Trump recently signed an Executive Order on Reducing Regulation and Controlling Regulatory Cost.   Some of the key components of the Order are:

  • “for every one new regulation issued, at least two prior regulations be identified for elimination”
  • For 2017 the total incremental cost of all new regulations shall be zero, the “budget” for future years will be determined by OMB
  • Any new incremental costs must be offset by the elimination of costs from at least two prior regulations
  • A regulation can’t be issued unless it was listed on the Unified Regulatory Agenda
  • OMB will provide guidance on implementation, such as for cost calculations, determining which regulations are covered, and provisions for emergency waivers

Media reports have identified many questions posed by experts about the legality and practicality of various portions of the Executive Order.  So, it’s too early to determine the exact impact of this action on drinking water rules.  Further guidance from the Office of Management and Budget (OMB) is anticipated in the future to provide more clarity on the implementation of the order.
At this point, it appears that regulations required by statute, which includes most drinking water regulations, are not impacted by the order.   The LCR revisions are just that, revisions and are not new rules.  Rule revisions are not specifically mentioned in the Executive Order and may also not be impacted but that’s not clear at this point.  Perchlorate, the most likely “new” rule is under a court ordered deadline that could also bypass the Executive Order restrictions.  Neither of these rules is expected in the next few weeks, or even in the next few months, so many of the questions may be answered before their respective proposals, either through legal action or in OMB guidance.
On Capitol Hill, there is also action to quash rules under the Congressional Review Act (CRA).  The CRA allows Congress to kill recent rules.  Only a handful of rules have been targeted so far and none are related to drinking water, although the Stream Protection Rule related to mining activities could have source water impacts.  None of the resolutions of disapproval have cleared both branches of Congress yet but there is still plenty of time for Congress to act.
ASDWA is in close contact with EPA about these issues.  EPA has advised us that, so far, no open comment deadlines have been impacted by any of the new Administration’s actions related to rules.   This covers deadlines over the next few weeks for the lead content rule, WIFIA rules, third Six Year Review, and others.  We will keep states informed as new information becomes available.