EPA ordered to withdraw, rethink Clean Water Rule

‘It’s been a disaster.’

Posted March 2, 2017

On February 28, President Trump signed an executive order to roll back the Obama-era Clean Water Rule. In remarks made during the afternoon signing ceremony in the White House Roosevelt Room, the president said, “The EPA’s so-called ‘Waters of the United States’ [WOTUS] rule is one of the worst examples of federal regulation, and it has truly run amok, and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land. It's prohibiting them from being allowed to do what they're supposed to be doing. It's been a disaster.”

The executive order (EO), titled “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” begins by stating the administration’s policy to ensure the nation’s navigable waters are kept free from pollution, but also acknowledging the importance of economic growth and regulatory certainty.

The EO directs the EPA and the U.S. Army Corps of Engineers (USACOE) to review the WOTUS and publish for notice and comment a proposed rule to rescind or revise it. Further, the executive order calls for EPA and USACOE to consider interpreting the term “navigable waters” to align with Justice Scalia’s opinion in Rapanos.

Because the rule is currently before the courts, the order directs the heads of EPA and USACOE to inform the U.S. Attorney General of the pending review. The Attorney General, in turn, may notify the court of the review and take measures concerning any pending litigation.

Background

The Clean Water Act (CWA) regulates the discharge of pollutants into navigable waters. However, what is considered to be a navigable water has been disputed for years. The 2006 Supreme Court case Rapanos v. United States established nationwide policy on the reach of the CWA, but was far from the last word. The court’s decision was sharply divided along ideological lines. The four conservative judges, led by Justice Antonin Scalia, stated that only navigable waters were covered by the CWA. But Justice Anthony Kennedy offered a concurring opinion that the CWA also applied when there is a significant connection between smaller waters, including intermittent waters, and larger water systems.

In 2011, in order to clearly state how it would apply and enforce the Rapanos ruling, EPA and the Army Corps issued guidance on determining if a waterway, waterbody, or wetland was protected by the CWA. But several members of Congress, developers, farmers, state and local governments, environmental organizations, energy companies, and others asked EPA to replace the guidance with regulation.

EPA and USACOE finalized the Clean Water Rule on June 29, 2015, and by August 27, 2015, a federal district court judge delayed the rule in 13 states. On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit placed the rule on hold pending further action in the court. Earlier this year, the Supreme Court agreed to hear arguments on where the case should be heard.

Why it matters

At the center of the controversy surrounding the Clean Water Rule is the definition of navigable waters. The rule attempted to clearly define the term to clear up uncertainty over the scope of federal jurisdiction in enforcing the Clean Water Act. It created new protections for tributaries and headwaters that had connections to downstream waters along with natural features such as prairie potholes, pocosins, vernal pools, and coastal wetlands when they are part of a system that impacts downstream waters.

EPA and USACOE enforce the application of the CWA. Programs that rely on the definition of Waters of the United States include the National Pollutant Discharge Elimination System (NPDES), which permits construction-related and industrial discharges into surface waters; Section 404 permitting, which is the Corp’s wetland permitting program; and oil spill prevention and response programs, which includes EPA’s Spill Prevention, Control, and Countermeasures rule.

EPA response

EPA posted a notice of its intention to review and rescind or revise the Clean Water Rule. EPA head Scott Pruitt signed the notice on February 28 and EPA has submitted it for publication in the Federal Register. According to the notice, EPA and USACOE will “consider interpreting the term ‘navigable waters’ as defined in the CWA in a manner consistent with the opinion of Justice Scalia in Rapanos. It is important that stakeholders and the public at large have certainty as to how the CWA applies to their activities.”


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