President Trump signed an executive order for the EPA to begin repealing the Clean Water Rule and replace it with something else. But here’s the gag: the new EPA chief, Scott Pruitt, will have to go through a rulemaking process that has taken years to revise and implement, and then defend it in court.
At the moment, the rule is on hold after a stay by the U.S. Court of Appeals for the Sixth Circuit due to numerous lawsuits that are making its way through the court system (one of which was brought forth by current Pruitt when he was the former attorney general of Oklahoma).
Figuring out which bodies of water need federal protection has caused legal confusion for years.
To understand the complexity of this rule, we have to understand the Clean Water Act, which was passed in 1972.
The Clean Water Act (CWA) is a federal law that regulates quality standards for surface waters and pollutants discharged in waterways that could impact human health or aquatic life. The law has dozens of regulations for entities that may spill anything harmful into the “waters of the United States.”
The CWA is clear when it comes to major navigable waters such as rivers and lakes, and other waterways connected to them. It is unlawful to discharge any pollutant from a point source (e.g. pipe or man-made ditch) into navigable waters unless there’s a permit to do so.
However, the law is murky in regards to small waterways such as streams and wetlands that don’t fall under the “navigable” category. Environmentalists have argued that smaller waterways that feed into rivers and lakes that provide drinking water need federal protection as well.
The Clean Water Rule – commonly referred to as the Waters of the United States (WOTUS) rule – defines and determines which waters are protected under the CWA to ensure the nation’s water resources are protected. The EPA and Army Corps of Engineers are responsible for determining which waterways fall under this protection.
To provide clarity on the CWA, the EPA and Army Corps of Engineers held hundreds of meetings, reviewed over one million public comments and utilized peer-reviewed scientific studies to establish the Clean Water Rule in 2015. The rule now extends federal protection for two million miles of streams and 20 million of acres of wetlands – essentially any wet spot, or occasionally wet spot, in the country – that provides drinking water to nearly one-third of Americans.
The Obama administration saw the broad reach of the rule as a victory that protected the drinking water of 117 million Americans, but it faced heavy criticism from farmers, ranchers, real estate developers and manufacturing, among others.
Opponents argue that any piece of land would suddenly fall under the jurisdiction of ‘waters’ and would need to secure federal permits to offset its impact. It represents another example of government overreach.
The fight against WOTUS is being led by Big Ag, farm lobbyists, small business groups and developers, not the usual big bad wolf: the fossil fuel industry. But supporters of the rule include outdoor enthusiasts such as hunters, anglers and boaters, a mostly conservative group.
This could be an interesting debate amongst the GOP.
It took more than a decade for WOTUS to be finalized. Previous administrations had failed to expand the regulatory scope of the CWA after the Supreme Court slapped down the rewriting of the law, most recently in 2001 and 2006.
Democratic state attorney generals are already looking into mounting lawsuits for rolling back the rule, which will probably end up before the Supreme Court of the United States again.
We’ll see if Pruitt will be able to effectively scale back the water rule by 2020, and regulate smaller waterways without always having to go to court.
Yesterday, Senate Majority Leader Mitch McConnell (R-KY), Senator Shelley Moore (R-WV) and House Republicans from Ohio and West Virginia introduced a joint resolution of disapproval to overturn President Obama’s Stream Protection Rule.
The new rule is an update to the Stream Buffer Zone Rule and imposes new restrictions on surface coal mining near waterways. It was issued by the Department of the Interior’s Office of Surface Mining Reclamation and Enforcement in late December, weeks before President Obama left office.
The regulation was immediately challenged in court by North Dakota and the Murray Energy Corporation, and nearly a dozen more states in a separate lawsuit, because it requires additional data gathering and monitoring around mine sites, and imposes new financial reclamation requirements for states.
Congressional Republicans argue that the Stream Protection Rule is a drastic overreach of the federal government that unfairly targets America’s coal industry and jobs. The introduction of the resolution is the formal kickoff campaign for conservation lawmakers to remove “burdensome” environmental regulations using the Congressional Review Act (CRA).
The CRA is a law that allows Congress to block executive action within the first 60 days of a new legislative session. It takes a simple majority in both the House and Senate to undo any last-minute regulations signed by the previous administration. With a majority in both chambers, Republicans can pass a joint resolution of disapproval and send it to President Trump to sign, thereby nullifying the rule.
The 60 day countdown begins this week, so Republicans and environmental groups are taking swift action. Once the joint resolution is introduced, it can move quickly to the President’s office because the law only allows up to 10 hours of debate in the House. The Senate cannot filibuster.
The Stream Protection Rule provides several protections to the water supply of local communities surrounded by coal mining operations. Mountaintop removal mining is one of the most damaging forms of coal mining and is responsible for destroying nearly 2,000 miles of streams in Appalachia. Studies show that this form of mining leads to cancer, birth defects, asthma and poor health; in addition to threatening scarce water resources in arid regions of the country.
This new protection rule is needed to ensure that our communities have the information and tools needed to hold polluters accountable for damage done to its people, wildlife and livelihood.
A coalition of conservation and environmental justice groups have come together to defend the Stream Protection Rule and uphold its new safeguards.
What is the Stream Protection Rule?
The Stream Protection Rule was developed by the Office of Surface Mining Reclamation and Enforcement (OSMRE) to “to avoid or minimize impacts on surface water, groundwater, fish, wildlife, and other natural resources” from coal mining.
The rule requires companies to:
The regulation is controversial because it opens up on how to define “hydrologic balance” and how monitoring practices should be done.
Environmental advocates believe the rule wasn’t stringent enough because it didn’t fully restrict the dumping of debris or address the most destructive mining practices, but applauded the rule for making it more difficult for companies to pollute streams.
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