Clean Water Rule

The Clean Water Rule was a 2015 regulation published by the U.S. Environmental Protection Agency (EPA) and the United States Army Corps of Engineers (USACE) to clarify water resource management in the United States under a provision of the Clean Water Act of 1972.^[1] The regulation defined the scope of federal water protection in a more consistent manner, particularly over streams and wetlands which have a significant hydrological and ecological connection to traditional navigable waters, interstate waters, and territorial seas. It is also referred to as the Waters of the United States rule, which defines all bodies of water that fall under U.S. federal jurisdiction. The rule was published in response to concerns about lack of clarity over its scope from legislators at multiple levels, industry members, researchers and other science professionals, activists, and citizens.^[2]

The rule has been contested in litigation. Its implementation has been stayed by court rulings since 2015.^[3] In 2017 the Trump administration announced its intent to review and rescind or revise the rule.^[4]

Key provisions

The rule ensures that Clean Water Act (CWA) programs are more precisely defined and intends to save time and avoid costs and confusion in future implementation of the act. The rule intends to make it is easier to predict what action(s) will be taken by the EPA and what processes companies and other stakeholders may have to undergo for projects and permitting. There are no direct changes to the law under the Clean Water Rule. After analysis, the EPA and Department of the Army found that higher instance of water coverage would produce a 2:1 ratio of benefits to costs in implementation after the final rule. Implementation of the rule will discern any implications for environmental justice communities, though it is clear that "meaningful involvement from minority, low-income, and indigenous populations, as well as other stakeholders, has been a cornerstone of development of the final rule." ^[5]

Infographic from the EPA, outlining the importance of extending coverage to wetlands and streams under the Clean Water Act.

Specific details that have been clarified by the rule are outlined below.^[6]

• Defines more clearly the tributaries and adjacent waters that are under federal jurisdiction and explains how they are covered

A tributary, or upstream water, must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and have a significant connection to downstream waters. Adjacent waters are defined by three qualifying circumstances established by the rule. These can include wetlands, ponds, impoundments, and lakes which can impact the chemical, biological or physical integrity of neighboring waters.

• Carries over existing exclusions from the Clean Water Act

All existing exclusions from longstanding agency practices are officially established for the first time. Waters used in normal agricultural, ranching, or silvicultural activities, as well as certain defined ditches, prior converted cropland, and waste treatment systems continue to be excluded.

• Reduces categories of waters which are subject to case-by-case analysis

Before the rule, almost any water could be put through an analysis that remained case-specific, even if it would not be covered under CWA. The rule limits use of case-specific analysis by providing certainty and clarity of protected vs non-protected water. Ultimately the rule saves time and avoids further evaluation and the need to take the case to court.

• Protects US "regional water treasures"

Specific watersheds have been shown to impact downstream water health.^[7] The rule protects Texas coastal prairie wetlands, Carolina and Delmarva bays, western vernal pools in California, pocosins, and other prairie potholes, when impacting downstream waterways.

Background

The Clean Water Act of 1972 is the primary piece of federal legislation regulating water pollution in the United States. Two U.S. Supreme Court decisions, in 2001 and 2006, interpreted a provision in the law involving non-navigable waters. The decisions casted doubt over the protection status of many streams and wetlands, which were originally thought by lower courts and regulatory agencies to be subject to the Act. These decisions highlighted a need for the EPA and USACE to more precisely define the types of tributaries which fall under WOTUS.

Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers

The Solid Waste Agency of Northern Cook County (SWANCC), Illinois, was denied federal permits to develop an old gravel mine site into a landfill because migratory bird ponds had developed in abandoned excavation trenches on the property.^[8] The Supreme Court ruled in 2001 that the authority granted by CWA did not extend to abandoned gravel pits with seasonal ponds.^[9]

Rapanos v. United States

In 1989, land developer John Rapanos filled 22 acres of wetland areas on his property without a permit and against repeated warnings from his environmental consultant and the Michigan Department of Environmental Quality.^[10] After he was convicted in 1995 of violating federal law, the conviction was later overturned and then reinstated, before ending up in the Supreme Court on appeal. In 2006 five justices agreed to void rulings against the plaintiffs, but no majority decision was reached on other aspects of the case, leaving guidelines for future wetlands jurisdiction unclear.^[11]

Development

Following the SWANCC ruling, the EPA (then under the George W. Bush administration) issued guidelines in 2003 restricting regulatory review of some 20 million acres of isolated wetlands and gave advance notice of proposed rulemaking which would substantially narrow the scope of WOTUS and weaken CWA protections.^[12][13] After strong opposition from Congress the planned legislation was abandoned, to the relief of environmental advocates and disappointment of land development groups who sought a reduction in federal wetlands protection.^[13]

The lack of a majority opinion in the 2006 Rapanos case prompted a second set of EPA guidelines directing the agency to determine wetlands protection on a case-by-case basis. This contributed to an uptick in lawsuits for the next 8 years challenging the EPA's regulatory authority over streams and wetlands.^[12] Seeking to reduce confusion and to restore the original scope of WOTUS to pre-SWANCC levels, repeated unsuccessful attempts were made to pass the Clean Water Authority Restoration Act (CWRA) in each Congress from 2002 to 2010.^[14]

In April 2011, the EPA, under the Barack Obama administration, proposed a new set of guidelines to replace the two issued under the Bush administration. These guidelines formed the basis of what became the Clean Water Rule. In contrast to the manner in which the 2003 and 2007 guidelines were issued, the EPA and the USACE conducted peer-reviewed hydrological studies, interagency reviews, and economic analyses before publishing a formal proposed rule on April 21, 2014.^[12][15]

On May 27, 2015, after a public comment period and numerous meetings with state entities, public and private stakeholders, then-EPA Administrator Gina McCarthy along with Assistant Army Secretary Jo-Ellen Darcy signed the Clean Water Rule, set to become effective in August of that year.^[1]

Implications for stakeholders

The EPA ensures that this rule creates no additional burden for stakeholders working in agriculture since there was no change to the exemptions for activities necessary to forestry, ranching, or farming.^[2] This rule provides clearer protection of many waters of the U.S. that, if polluted, could have detrimental effects on drinking water, habitats, and flood-prone areas. One U.S. water news organization stresses that, while this rule was an update to the CWA, there is still a need for more regulation since more than half of the nation's streams and rivers do not meet standards and most pollution issues come from nonpoint sources, such as agricultural runoff.^[16] Many people, 117 million according to the EPA, rely on drinking water, in addition to many others who subside on fishing, from sources protected under the implementation of the rule.^[6]

Low-income communities and communities of color are more often at risk of being affected by pollution.^[17] It has also been evidenced that, "states conduct fewer regulatory enforcement actions in counties with higher levels of poverty."^[18] The Environmental Justice Coalition for Water expressed, in its comment on the rule, the need to "strengthen the categorical protections" to wetlands, to minimize flooding and support pollution remediation.^[19]

While there are no direct implications for indigenous peoples, tribal communities were consulted during the process of finalizing the Clean Water Rule.^[20] A separate, revised interpretive rule to the Clean Water Act, section 518, determined tribal lands should be treated as states and was made effective in May 2016. This amendment is important for giving people living on reservations access to EPA regulation and federal grants; tribes no longer need to "demonstrate inherent authority to regulate" their waters.^[21]

The regulation at the state level is determined by the strength of federal coverage and some stakeholders consider the rule to be overreach by the government.^[22] There is concern from private landowners, including small business owners and farmers, that this "rule will lead to radical environmental groups suing homeowners and small businesses," and, ultimately, "increased regulatory costs, less economic development, fewer jobs."^[23]

Legal challenges and opposition

Partisan and industry opposition

Government regulation and protection of fresh water supplies and watershed health is frequently perceived on the political right as a burden on economic growth and an infringement of landowner rights.^[24] The Clean Water Rule was part of a larger mobilization by the Obama administration to ingrain the presidency with an environmental legacy, which Republicans have viewed as an “over-reach” of executive power.^[25]

The pushback against the Clean Water Rule also include some Democrats from "farm and energy states".^[24] Some state and local governments also consider the Clean Water Rule an unconstitutional over-reach violating federalism principles and due process provisions outlined in the 10th and 14th amendments respectively.^[26][27] Legal objections could also be raised on the principle that the Clean Water Act itself violates the Commerce Clause of the Constitution.^[28]

On February 22, 2017, the Business Roundtable provided a list of federal regulations to the Trump administration which it wished to have reviewed for repeal or major reform; the Clean Water Rule was among the "wishlist" of sixteen.^[29] The roundtable is a consortium of large corporations including J.P. Morgan Chase, Honeywell, Lockheed Martin, and Dow Chemical Company.

Federal stay

After thirteen states sued to block the rule, U.S. Chief District Judge for North Dakota Ralph R. Erickson issued a preliminary injunction in 2015, hours before the rule was to take effect, blocking regulation in those states.^[3] In a separate case, a divided federal appeals court stayed the rule's application nationwide on October 9, 2015. The stay was issued in a 2:1 decision by the Sixth Circuit Court on the day before the rule was supposed to come into effect.^[30]

Future under Trump administration

The selection of Scott Pruitt to head the EPA was widely viewed by both supporters and detractors as a signal of Trump's intent to dismantle key environmental legislation passed under Obama.^[31] Pruitt has led or been a key player in 14 separate lawsuits against the EPA over several major regulations, including the Clean Water Rule.^[32] His nomination faced sharp opposition from EPA employees, Democrats and major environmental groups due to his history and close ties to the energy industry,^[31] but was eventually confirmed by a 52-46 vote in February 2017, split along party lines.^[33]

On February 28, 2017, President Trump signed an executive order directing EPA to review the Clean Water Rule for conflicts with his economic growth agenda.^[34]

On March 6, 2017 the Trump administration announced its intent to review and rescind or revise the rule.^[4]

Related actions

On February 16, 2017, President Trump signed a resolution that had been passed by Congress, to immediately rescind the Stream Protection Rule. The rule, which had been issued by the Office of Surface Mining Reclamation and Enforcement, was intended to protect water quality at mountaintop removal mining sites.^[35]

See also

• Environmental policy of the United States
• Indigenous rights to land along rivers
• Inland waterways of the United States

References