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Battle over the Clean Water Rule: What’s at stake?

Battle over the Clean Water Rule: What’s at stake?

The issue, which involves certain wetlands and temporary waterways, is likely to end up in court (again).


Just who gets to regulate America’s many seasonal streams and wetlands?

That’s a question that has long been contentious.

At the end of June, Environmental Protection Agency Administrator Scott Pruitt formally proposed revoking the Obama-era Clean Water Rule, also known as the “Waters of the US” rule, or WOTUS.

Mr. Pruitt was acting on an executive order signed by President Trump back in February. And depending on whom you talk to, the move to repeal the rule is either an environmental disaster that opens up America’s waterways to pollution and development and puts Americans’ drinking water at risk, or a common-sense action that gets rid of a rule particularly despised by many farmers, ranchers, and developers and returns regulatory authority to states.

Q: What is the rule? 

The term “Waters of the United States” comes from the landmark 1972 Clean Water Act. The 2015 Clean Water Rule was designed to provide long-sought guidance on just which “navigable waters” fall under federal jurisdiction and are covered by the protections in that act.

Some waters, including permanent rivers and streams, clearly meet the definition. But many wetlands, seasonal streams, and ditches don’t necessarily qualify: They’re not connected to US waterways much of the time, even though they may ultimately feed into them.

In a 2006 US Supreme Court ruling to determine the jurisdiction, Rapanos v. United States, the court was split. Four conservative justices, led by Justice Antonin Scalia, offered a constrained definition that includes only “relatively permanent bodies of water.” Justice Anthony Kennedy concurred, but added that it should also include wetlands and intermittent streams that have a “significant nexus” to those waters – an opinion that has largely governed decisions since.

The Clean Water Rule carried over existing exemptions for things like agriculture and ranching. It has never taken effect, as lawsuits from states (including one involving Mr. Pruitt when he was Oklahoma attorney general) are working their way through the courts.

Q: What change is the EPA proposing? 

The rule the EPA has put forward – currently in the 30-day comment period – would mean going back to the standards used 10 years ago. Since the Clean Water Rule is currently under a stay, it wouldn’t actually change practice on the ground.

There’s also some question about whether the repeal is fully legal – and it’s likely to be challenged in court. The EPA “can’t declare that within 30 days it’s going to stop following the law and ignore the standards that have been adopted” through long-standing administrative procedure, says Howard Learner, executive director of the Environmental Law & Policy Center, which supports the Clean Water Rule.


In his executive order, Mr. Trump directed the EPA to redefine “navigable waters” in future rules in accordance with Justice Scalia’s definition – an action that would severely limit the waterways that the Clean Water Act applies to. This would also probably face legal challenges.

Q: Why are environmental groups so opposed to the EPA’s move? 

While this move can seem like legal parsing, environmentalists emphasize how much is at stake – including drinking water for millions of Americans. “I know very few people who prefer to have dirty water,” says Robert Brooks, a geography and ecology professor at Pennsylvania State University who served on an EPA panel that reviewed the scientific evidence for the Clean Water Rule.

Professor Brooks says he’s frustrated by the partisan divide that has made the rule so contentious. “This rule, had it been put into effect, would have made the boundaries a lot clearer without extending jurisdiction,” he says. “But because of political rhetoric, we are back to where we started, with trying to muddle through court decisions and develop guidance that is already out there.”

He and others see more potential harm if the EPA under Trump is able to adopt the rules it has said it wants. “If we were to go backwards in time and adopt the Scalia rule, I would guarantee that the quality of the water, all the aspects – physical, chemical, and biological – would be degraded and we would suffer the consequences,” Brooks says.

Q: Why are others cheering the proposal? 

Numerous conservatives and industry groups – especially farmers, ranchers, and developers – saw the Clean Water Rule as a prime example of federal overreach that gave Washington jurisdiction to regulate waters it had no business being involved with, infringed on private property rights, and, if the rule were ever implemented, would be hugely burdensome to landowners. “The Trump administration today has taken the next step toward stopping Washington regulation of Tennessee farmers’ mud puddles,” said Sen. Lamar Alexander (R) of Tennessee in a statement when the EPA’s move was announced.

For many farmers in particular, it’s simply too much federal regulation. “We take the approach that through voluntary, incentive-based conservation initiatives, we can address some of these issues,” says Brent Van Dyke, president of the National Association of Conservation Districts and a farmer in New Mexico.

Mr. Van Dyke also contends that the Clean Water Rule was far from clear. “The definables they had in the new proposed rule, there were so many gray areas,” he says. “When a farmer is out there trying to plan what he is going to produce, we cannot have those gray areas…. We’re not anti-regulation, but we believe there are enough regulations on the books.”

Source: Christian Science Monitor | 3 mins read

By:   Staff writer



Another article 9/10/2017:

What You Need to Know About the Clean Water Rule

By Rebecca Long, American Rivers

On June 27 Administrator Scott Pruitt of the U.S. Environmental Protection Agency (EPA) announced a roll back of an Obama-era administration policy that protected more than half the nation’s streams from pollution. “We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” Pruitt said in a statement at the time. But what is the Clean Water Rule (CWR), why was it never implemented, and how will repealing it affect the drinking water of one in three Americans?

The Obama administration introduced the Clean Water Rule, also known as the Waters of the United States rule, in 2015. The regulation was meant to clarify portions of the 1972 Clean Water Act (CWA). The CWA explicitly protects the “waters of the United States,” which are defined under previous regulations as “traditional navigable waters, interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, tributaries, the territorial seas, and adjacent wetlands.”

However, under the CWA, it was difficult to discern if certain bodies of water were federally protected or not. Were wetlands adjacent to non-navigable tributaries of navigable waters protected or not? Confusing, right? These uncertainties lead to frustrations between developers and environmental protection groups, and ultimately, were addressed several times by the U.S. Supreme Court.

On May 27, 2015, the EPA and the Army Corps of Engineers released the CWR as a means to clarify the CWA. The rule maintained much of the old definition of the “Waters of the United States,” but took into account past Supreme Court rulings, public comment, as well as a major scientific assessment known as the Connectivity of Streams and Wetlands to Downstream Water Assessment. This assessment concluded that “streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters.” Naturally, large bodies like lakes and rivers were listed, but the rule also found streams (intermittent and ephemeral ones too), ponds, and other smaller features that have connections to these bigger, “navigable” waterways are indeed federally protected.

Since October 2015, the Clean Water Rule has been stuck in federal appeals court. But just because the rule hasn’t been fully implemented, doesn’t mean repealing it won’t have long-term effects on our drinking water, environment, economy and much more.

According to the EPA, within the continental U.S., about 117 million people, or more than one third of the total U.S. population, get some or all of their drinking water from public drinking water systems that rely at least in part on intermittent, ephemeral or headwater streams. These are the same intermittent, ephemeral or headwater streams that the Trump administration’s EPA wants to no longer protect by revoking the Clean Water Rule. By slashing clean water safeguards, the President and Pruitt are putting the health of hundreds of millions of us at risk.

Not only is our drinking water at risk, but clean water is essential to the economy. Our $887-billion outdoor recreation economy supports 7.6 million American jobs, and it all depends on clean water. In 2011 alone, hunters spent $34 billion, anglers spent $41.8 billion and wildlife watchers spent $55 billion. The money that sportsmen spend in pursuit of their passion supports everything from major manufacturing industries to small businesses in communities across the country.

The streams and wetlands that the CWR protects not only affect the water quality for fish downstream, but also provides nesting habitat for more than 50 percent of North American waterfowl. Wetlands span some 110 million acres across the U.S., providing critical habitat for fish and wildlife as well as aiding in filtration of contaminated runoff and groundwater storage. If we lose these wetlands, we risk losing habitat for fish and wildlife and the economic boost given by those on the quest for the perfect catch.

What happens upstream, effects those downstream. What we do today to protect our water, protects our water tomorrow. It’s that simple.

We have until Sept. 27, join us in telling the EPA and Administrator Pruitt that we need to strengthen, not weaken, safeguards for clean water.


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