Clean Water Rule
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The Clean Water Rule is 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 Water resources are natural resources of water that are potentially useful for humans, for example as a source of drinking water supply or irrigation water. 97% of the water on the Earth is Saline water, salt water and only three percent is fresh ...
in the
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under a provision of the
Clean Water Act of 1972 The Clean Water Act (CWA) is the primary federal law in the United States governing water pollution. Its objective is to restore and maintain the chemical, physical, and biological integrity of the nation's waters; recognizing the responsibiliti ...
.U.S. Army Corps of Engineers and Environmental Protection Agency (EPA). "Clean Water Rule: Definition of 'Waters of the United States'." Final Rule. ''Federal Register,'' . 2015-06-29. The regulation defined the scope of federal water protection in a more consistent manner, particularly over
stream A stream is a continuous body of water, body of surface water Current (stream), flowing within the stream bed, bed and bank (geography), banks of a channel (geography), channel. Depending on its location or certain characteristics, a stream ...
s and
wetland A wetland is a distinct ecosystem that is flooded or saturated by water, either permanently (for years or decades) or seasonally (for weeks or months). Flooding results in oxygen-free (anoxic) processes prevailing, especially in the soils. The ...
s 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 (WOTUS) 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 the act's scope from legislators at multiple levels, industry members, researchers and other science professionals, activists, and citizens. The rule was contested in litigation. In 2017 the
Trump administration Donald Trump's tenure as the List of presidents of the United States, 45th president of the United States began with Inauguration of Donald Trump, his inauguration on January 20, 2017, and ended on January 20, 2021. Trump, a Republican Party ...
announced its intent to review and rescind or revise the rule.USACE and EPA. "Intention To Review and Rescind or Revise the Clean Water Rule." Notice. . 2017-03-06. A Supreme Court ruling on January 22, 2018 returned the rule's nationwide authority after the rule was decided to be illegal by a lower court. It gave back jurisdiction previously complicated by decisions from the circuit courts of appeals. Two weeks later, the Trump administration formally suspended the rule until February 6, 2020. The Trump administration formally repealed the WOTUS rule on September 12, 2019 and published a replacement rule on April 21, 2020. On August 30, 2021, the
United States District Court for the District of Arizona The United States District Court for the District of Arizona (in case citations, D. Ariz.) is the U.S. district court that covers the state of Arizona. It is under the United States Court of Appeals for the Ninth Circuit. The District was esta ...
threw out the 2020 replacement rule. In June 2021 the administration of President Joe Biden announced that it would reverse the 2019 rule and restore 2015 regulation widening the scope of federal jurisdiction over waterways.


Key provisions of the rescinded 2015 rule

The 2015 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 Environmental justice is a social movement to address the unfair exposure of poor and marginalized communities to harms from hazardous waste, resource extraction, and other land uses.Schlosberg, David. (2007) ''Defining Environmental Justic ...
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." Specific details that have been clarified by the rule are outlined below. * 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. The rule protects
Texas Texas (, ; Spanish language, Spanish: ''Texas'', ''Tejas'') is a state in the South Central United States, South Central region of the United States. At 268,596 square miles (695,662 km2), and with more than 29.1 million residents in 2 ...
coastal prairie wetlands, coastal depressions called Carolina Bays and the related seasonal Delmarva bays, western
vernal pool Vernal pools, also called vernal ponds or ephemeral pools, are seasonal pools of water that provide habitat for distinctive plants and animals. They are considered to be a distinctive type of wetland usually devoid of fish, and thus allow the safe ...
s in
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,
pocosin A pocosin is a type of palustrine wetland with deep, acidic, sandy, peat soils. Groundwater saturates the soil except during brief seasonal dry spells and during prolonged droughts. Pocosin soils are nutrient-deficient (oligotrophic), especially ...
s, and other
prairie pothole The Prairie Pothole Region (PPR; french: Région des cuvettes/fondrières des prairies) is an expansive area of the northern Great Plains that contains thousands of shallow wetlands known as potholes. These potholes are the result of glacier act ...
s, when impacting downstream waterways.


Defining ‘Waters of the United States’

The Clean Water Act is the primary federal law regulating
water pollution Water pollution (or aquatic pollution) is the contamination of water bodies, usually as a result of human activities, so that it negatively affects its uses. Water bodies include lakes, rivers, oceans, aquifers, reservoirs and groundwater. Water ...
in the United States. The language of the Clean Water Act describes itself as pertaining to "Waters of the United States". The act defines these waters as "navigable waterways", which connects the act to constitutional authority to regulate interstate commerce. Two
U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
decisions, in 2001 and 2006, interpreted the law to include waters not presently navigable that were formerly navigable that might be readily dredged to be restored to navigation or be made available for navigation. The scope of these decisions cast into doubt lower court decisions interpreting the act's authority to extend regulatory authority to streams, wetlands, and small bodies of water not navigable in the sense of the interstate commerce clause. These decisions highlighted a need for the EPA and USACE to more precisely define and justify an implicit regulatory authority over tributaries flowing into the navigable waterways for which a clear statutory authority is provided.


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. The Supreme Court ruled in 2001 that the authority granted by CWA did not extend to abandoned gravel pits with seasonal ponds.


''Rapanos v. United States''

In 1989, land developer John Rapanos filled on his property some 10-20 miles from the nearest navigable waters that his environmental consultant had classified as wetlands without a permit from the Michigan Department of Environmental Quality. '' Rapanos v. United States'' resulted in a 2006 Supreme Court decision with five justices concurring to vacate rulings against the defendants, but issuing three distinctly differing opinions leaving uncertain which of the described tests defined the limit of the federal authority to regulate wetlands. The resulting ambiguity became a part of the stated rationale for EPA rulemaking activity that resulted in the 2015 Waters of the United States rule.


Development

Following the ''SWANCC'' ruling, the EPA (then under the
George W. Bush administration George W. Bush's tenure as the 43rd president of the United States began with his first inauguration on January 20, 2001, and ended on January 20, 2009. Bush, a Republican from Texas, took office following a narrow victory over Democratic in ...
) 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. After strong opposition from
Congress A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of a ...
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. 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. 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 Clean may refer to: * Cleaning, the process of removing unwanted substances, such as dirt, infectious agents, and other impurities, from an object or environment * Cleanliness, the state of being clean and free from dirt Arts and media Music Al ...
(CWRA) in each Congress from 2002 to 2010. In April 2011, the EPA, under the
Barack Obama administration Barack Obama's tenure as the 44th president of the United States began with his first inauguration on January 20, 2009, and ended on January 20, 2017. A Democrat from Illinois, Obama took office following a decisive victory over Republican ...
, 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. On May 27, 2015, after a public comment period and numerous meetings with state entities, public and private stakeholders, then-EPA Administrator
Gina McCarthy Regina McCarthy (born May 3, 1954) is an American air quality expert who served as the first White House national climate advisor from 2021 to 2022. She previously served as the thirteenth Administrator of the Environmental Protection Agency fro ...
along with Assistant Army Secretary
Jo-Ellen Darcy Jo-Ellen Darcy is an American government official, most recently serving as the Assistant Secretary of the Army (Civil Works) from August 11, 2009 to January 20, 2017. Biography Jo-Ellen Darcy was raised in Fitchburg, Massachusetts. She attend ...
signed the Clean Water Rule, set to become effective in August of that year.


Implications for stakeholders

EPA had stated that the 2015 rule created no additional burden for stakeholders working in agriculture since there was no change to the exemptions for activities necessary to forestry, ranching, or farming. The rule provided 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 stressed that, while the 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 Agricultural pollution refers to biotic and abiotic byproducts of farming practices that result in contamination or degradation of the environment and surrounding ecosystems, and/or cause injury to humans and their economic interests. The pol ...
. Many people, 117 million according to EPA, rely on drinking water, in addition to many others who subside on fishing, from sources protected under the implementation of the rule. Low-income communities and communities of color are more often at risk of being affected by pollution. It has also been evidenced that, "states conduct fewer regulatory enforcement actions in counties with higher levels of poverty." 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. While there are no direct implications for
indigenous peoples Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...
, tribal communities were consulted during the process of finalizing the Clean Water Rule. 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. 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. 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."


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. 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. The pushback against the Clean Water Rule also include some Democrats from "farm and energy states". 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
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and
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amendments respectively. Legal objections could also be raised on the principle that the Clean Water Act itself violates the
Commerce Clause The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and amon ...
of the Constitution. On February 22, 2017, the
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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. The roundtable is a consortium of large corporations including
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,
Honeywell Honeywell International Inc. is an American publicly traded, multinational conglomerate corporation headquartered in Charlotte, North Carolina. It primarily operates in four areas of business: aerospace, building technologies, performance ma ...
,
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, and
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.


Federal stay

After thirteen states sued to block the rule, U.S. Chief District Judge for North Dakota
Ralph R. Erickson Ralph Robert Erickson (born April 28, 1959) is an American lawyer who serves as a United States circuit judge of the United States Court of Appeals for the Eighth Circuit. Education and career Born in Thief River Falls, Minnesota, Erickson rece ...
issued a preliminary injunction in 2015, hours before the rule was to take effect, blocking regulation in those states. In a separate case, the Sixth Circuit Court temporarily halted implementation of the 2015 Rule by issuing a nationwide stay on October 9, 2015, which was the day before the rule was supposed to come into effect. The Sixth Circuit's decision was overturned on January 22, 2018 when the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
issued a unanimous decision that the appeals courts do not have original jurisdiction to review challenges to the
Clean Water Act The Clean Water Act (CWA) is the primary federal law in the United States governing water pollution. Its objective is to restore and maintain the chemical, physical, and biological integrity of the nation's waters; recognizing the responsibiliti ...
and, therefore, lack the authority to issue a stay. Rather, challenges to the 2015 Rule must be filed in
United States district courts The United States district courts are the trial courts of the U.S. federal judiciary. There is one district court for each federal judicial district, which each cover one U.S. state or, in some cases, a portion of a state. Each district cou ...
.


Trump administration

Donald Trump Donald John Trump (born June 14, 1946) is an American politician, media personality, and businessman who served as the 45th president of the United States from 2017 to 2021. Trump graduated from the Wharton School of the University of Pe ...
, as part of his 2016 presidential campaign had set a goal of repealing or weakening the WOTUS rule, and once in office, began to act on that pledge, stating that the rule was a "massive power grab" by the government on farmers, home owners, and land commissioners, stalling economic growth. On February 28, 2017 Trump signed an executive order directing EPA to review the Clean Water Rule for conflicts with his economic growth agenda. On March 6, 2017 the Trump administration announced its intent to review and rescind or revise the rule. The Trump administration's choice for the EPA water chief, David Ross, represented the state of Wyoming in 2015 in a lawsuit against EPA's interpretation of WOTUS. On February 16, 2017 Trump signed a law disapproving and vacating the
Stream Protection Rule The Stream Protection Rule was a United States federal regulation issued by the Office of Surface Mining Reclamation and Enforcement that went into effect on January 19, 2017. These regulations implement Title V of the 1977 Surface Mining Control ...
. The rule, published by the
Office of Surface Mining Reclamation and Enforcement The Office of Surface Mining Reclamation and Enforcement (OSMRE) is a branch of the United States Department of the Interior. It is the federal agency entrusted with the implementation and enforcement of the Surface Mining Control and Reclamati ...
on December 20, 2016 with just 31 days left in the Obama Administration's term of office, regulated
mountaintop removal mining Mountaintop removal mining (MTR), also known as mountaintop mining (MTM), is a form of surface mining at the summit or summit ridge of a mountain. Coal seams are extracted from a mountain by removing the land, or overburden, above the seams. Thi ...
sites. In January 2018 EPA formally suspended the 2015 WOTUS regulation and announced plans to issue a new version later in 2018. Fifteen states, two cities and several environmental organizations have challenged EPA's suspension in several lawsuits. EPA and USACE published a proposed rule on February 14, 2019 that would revise the WOTUS definition.EPA and USACE (2019-02-14). "Revised Definition of 'Waters of the United States.'" Proposed rule. The Trump administration formally announced that the WOTUS rule had been repealed on September 12, 2019, to take effect within weeks. A replacement rule for the Clean Water Rule was issued by the Trump administration on January 23, 2020 (published April 21, 2020), which further rolled back protection on certain wetlands and streams and eliminated requirements for landowners to get EPA approval for certain modification of their own lands.EPA and USACE (2020-04-21). "The Navigable Waters Protection Rule: Definition of 'Waters of the United States.' Final rule. ''Federal Register,'' The
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and other environmental groups sued to block the new rule. On August 30, 2021, the
United States District Court for the District of Arizona The United States District Court for the District of Arizona (in case citations, D. Ariz.) is the U.S. district court that covers the state of Arizona. It is under the United States Court of Appeals for the Ninth Circuit. The District was esta ...
threw out the 2020 replacement rule in ''Pasqua Yaqui Tribe et al v. EPA.'' The court stated that EPA made serious procedural errors in its issuance of the 2020 rule and that implementation of the rule would lead to "serious environmental harm."


Biden administration

In June 2021 the administration of President Joe Biden described "significant environmental degradation" from hundreds of recently-initiated development projects that were not subject to regulatory approval because of the 2019 repeal. In an announcement the EPA said it planned initiate a new rulemaking to reverse the 2019/2020 rule.


See also

*
Environmental policy of the United States The environmental policy of the United States is a federal governmental action to regulate activities that have an environmental impact in the United States. The goal of environmental policy is to protect the environment for future generations whi ...
*
Indigenous rights to land along rivers ''Winters v. United States'', 207 U.S. 564 (1908), was a United States Supreme Court case clarifying water rights of American Indian reservations. This doctrine was meant to clearly define the water rights of indigenous people in cases where the r ...
*
Inland waterways of the United States The inland waterways of the United States include more than of navigable waters. Much of the commercially important waterways of the United States consist of the Mississippi River System—the Mississippi River and connecting waterways. Ext ...


References

{{Reflist


External links


Waters of the United States Rulemaking
- EPA Water law in the United States United States Environmental Protection Agency United States Army Corps of Engineers 2015 in the environment Water pollution in the United States