​Repeal and Replace: The Clean Water Rule

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.
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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.
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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.

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