According to The Hill, the U.S. Environmental Protection Agency’s (EPA’s) proposal to undo the 2015 Clean Water Rule, also known as the Waters of the United States rule, will soon publish in the Federal Register, officially opening a final 30-day comment period.
In February, President Donald Trump issued an executive order rolling back the regulation, which had not gone into effect.
The 2015 rule would have extended federal jurisdiction under the Clean Water Act (CWA) to other bodies of water like headwaters, streams, wetlands, lakes, ponds and other tributaries. These other bodies include the drinking water sources of some 117 million Americans, according to the rule’s supporters and environmental groups like Natural Resources Defense Council.
As designated bodies of water under the rule, industries, utilities and others would have required permits under CWA to discharge waste or fill to these other water bodies.
[The rule] will ensure polluters who knowingly threaten our waters can be held accountable,” said President Barrack Obama in a prepared statement that announced the final version of the 2015 regulation.
President Obama also noted that the 2015 rule attempted to clarify many years of variation in how Federal agencies defined certain water bodies as “navigable waters” under CWA.
Then House Speaker John Boehner said the 2015 rule would devastate the economy. Various members of the Congress mobilized immediately to block it.
Defining Navigable Waters
When the rule was proposed, EPA had received and responded to more than 1,000 comments. When it was finalized, industries pushed back and began preparing lawsuits, calling it regulatory overreach, according to Politico’s Jenny Hopkinson.
Then EPA Administrator Gina McCarthy said the rule maintained long-held exemptions for industries like agriculture, and the agency posted a series of industry-specific fact sheets. Those fact sheets are no longer readily available on the Trump Administration’s EPA website.
While EPA wrote hundreds of responses to many points of view in its 2015 Clean Water Rule promulgation, two pointed responses in the Other Waters of the United States section of the response documents address case law that opine on which waters of the United States are acceptable to discharge to without permit under CWA.
In essays 13 and 15, EPA noted that many dissenters argued against Supreme Court Justice Anthony Kennedy’s opinion in the 2006 case Rapanos v. U.S. Justice Kennedy concluded that the term “waters of the United States” encompasses wetlands and other waters that:
Possess a ‘significant nexus’ to waters that are or were navigable in fact, or that could reasonably be so made.”
EPA noted in its response that “all U.S. Courts of Appeal and virtually all U.S. District Courts that have applied Rapanos have held that Justice Kennedy’s standard may be applied to identify jurisdictional waters.”
The Courts’ Mess
The position of the agencies had been that the Clean Water Rule “is appropriately premised on the significant nexus standard as articulated by Justice Kennedy.” While the Supreme Court found for Rapanos in the judgement, differing opinion led by Justice Antonin Scalia noted that immense expansion of federal regulation of land use had been occurring under the Clean Water Act “without any change in the governing statute” for five administrations.
Rapanos produced a broad consensus of opinion, virtually unheard of when it comes to wetlands regulation, that the Supreme Court had made things worse, rather than better,” Richard Frank, director of the California Environmental Law & Policy Center at University of California, Davis told the New York Times in 2011.
With the majority of federal courts of appeal having tackled the issue of what Rapanos really means, the 2015 Waters of the United States Rule was an attempt to settle the matter nationally.
It’s been argued that the Supreme Court abdicated its role in Rapanos, subjecting judges to wrestle with the case’s legacy. With U.S. Army Corps of Engineers v. Hawkes Co., Inc. decided in 2016, the Supreme Court opened the door to court review of the Army Corps’ jurisdictional determinations of “waters of the United States” under the Administrative Procedure Act.
Current government spending bills exempt both the EPA and The Army Corps of Engineers from the regulatory process in rolling back the Clean Water Rule, returning agency actions on these other waters under CWA to a future legacy of court review.