The Rollback Begins: Is it the Beginning of the End for the Clean Water Rule?
President Trump recently got the ball rolling on rescinding or revising The Clean Water Rule (the Rule) — a President Obama-era environmental regulation that sought to expand the federal government’s reach under the Clean Water Act (CWA).
For background, the Federal Water Pollution Control Act, enacted in 1948 and later reorganized and expanded in 1972, is known today as the CWA. The CWA establishes a structure for regulating discharges of pollutants into the waters of the United States and regulates quality standards for surface waters. Congress sought to regulate interstate commerce by prohibiting discharges of pollutants into “navigable waters.” This was originally understood to include bodies of water that could be used to transport goods from one state to another. But in recent years that phrase has taken on a much broader meaning, prompting farmers and business groups, among others, to raise federalism and government overreach concerns. Protests became particularly clamorous when President Obama’s EPA announced the Rule in May 2015, seeking to revise the administrative definition of what has developed into a tricky phrase: “waters of the United States” — waters that are protected by the statute.
The Rule proposed to assert federal jurisdiction over interstate waters, territorial seas, impoundments of jurisdictional waters, covered tributaries, and covered adjacent waters. It also established that Justice Kennedy’s “significant nexus” test in the Supreme Court’s Rapanos decision would serve as the government’s standard in analyzing questionable bodies of water such as prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California and prairie wetlands in Texas.
The Rule became particularly problematic for business and industry because of its arguably arbitrary provision seeking to regulate areas adjacent to traditional navigable waters. In particular, waters within 4,000 feet of the high tide line or ordinary high water mark of a traditional navigable water, interstate water, etc., would come under the federal government’s jurisdiction. This standard raised eye brows when an analysis of New York State conducted by the American Farm Bureau Federation concluded that 98 percent of New York’s land mass was within the 4,000 foot buffer.
The EPA, led by Scott Pruitt, and the U.S. Army Corps of Engineers announced they would begin the withdrawal process from the Rule, which will include a review of what “waters of the United States” should fall under federal jurisdiction. The reactions were predictable, as environmental groups denounced the move as jeopardizing drinking water quality, and critics of the Rule praised the decision as returning power to the states. President Trump’s Executive Order instructed the agencies to redesign the Rule consistent with the late Justice Scalia’s opinion in Rapanos, which interpreted the federal government’s jurisdiction to cover only relatively permanent, standing or continuously flowing waters or wetlands having a surface connection with a navigable waterway.