Last week, EPA and the Army Corps of Engineers promulgated the final rule repealing the 2015 rule defining the Waters of the United States. The repeal rule is 172 pages in its pre-publication version. The word “science” is used 18 times in those 172 pages. Almost all of them are used in quotes from the 2015 rule or characterizations of the intent of the 2015 rule.
I did not find a single sentence in the repeal rule stating that the science does not support the 2015 rule. As I noted when the Supplemental Notice of Proposed Rulemaking was issued, the mission of EPA and the Corps is to protect the Waters of the United States. If they’ve concluded that the text of the Clean Water Act doesn’t give them the authority needed to do so, the Administration could certainly propose amendments to the CWA to give them that authority.
That’s what used to be called “governing.”
No- governing must occur within the confines of our Constitution. Only Congress has the power of lawmaking, not EPA. While the science may support WOTUS, Congress did not delegate authority to EPA to regulate intermittent streams. The Constitutional approach is to present the new science to Congress so it can amend the law as may be necessary.