On Thursday, July 27, 2017, the Environmental Protection Agency (EPA) and Department of the Army Corps of Engineers (“the agencies”) officially published their proposed rule to amend the definition of “waters of the United States” protected by the Clean Water Act. The proposal seeks to change the definition back to the less-inclusive and less-protective definition in place prior to the adoption of the 2015 Clean Water Rule under the Obama Administration. Many worry that the proposal, which has been in the works since early this year, is the Trump Administration’s first step in chipping away protections provided by the Clean Water Act and another effort amongst many to take away authority from the EPA.
When the Clean Water Rule was finalized in 2015 it restored protections under the Clean Water Act to intermittent streams and wetlands as previously defined before two Supreme Court decisions made in 2001 and 2006 made enforcement and jurisdiction unclear. These small streams and wetlands need our protection as they impact the quality and health of downstream coastal waters and ultimately the ocean. These upstream waters contribute to our drinking water supplies, provide flood protection and recreational opportunities, and support healthy communities, strong economies and resilient coasts.
In February 2017, President Trump signed an executive order directing the agencies to either rescind or rewrite the Clean Water Rule. The order suggested that the Clean Water Act should protect only “relatively permanent” bodies of water, and wetlands continuously connected to permanent bodies of water. This definition excludes rivers and streams flowing less than 365 days per year, as well as converted cropland and waste treatment systems. The result would leave sources of drinking water for millions of Americans unprotected.
The new Trump Administration proposal makes two major arguments for changing the Clean Water Rule. The first focuses on the rights of states, while the second hinges on pending litigation.
The first argument is that the Clean Water Rule did not adequately consider the rights of states in regulating waters within their borders. The proposal states that thirty-one different lawsuits filed challenging the Clean Water Rule raised federalism concerns about the scope and authority of the Rule. Those states challenging the Rule argue that the Rule is an overreach of federal regulation.
The Trump Administration’s second argument is based on a case called National Association of Manufacturers v. Department of Defense. The case is before the Supreme Court on an appeal from the Sixth Circuit, and addresses the issue of whether suits challenging the Clean Water Rule must be heard by federal district or federal appellate courts. Although the case was brought by persons challenging the substance of the Clean Water Rule, at this stage, the issue before the Court is purely jurisdictional, meaning it is addressing only which court may hear the case.
The Sixth Circuit held that issues on the Clean Water Rule were directly reviewable by federal appellate courts and issued a nation-wide stay on the Clean Water Rule. This means that the Rule is not in effect, and cannot go into effect until the merits of the case are decided. If the Supreme Court disagrees with the Sixth Circuit and decides that federal district courts have original jurisdiction over cases challenging the Clean Water Rule, the stay on the Rule will no longer be in effect. The administration argues that this result would lead to inconsistency and confusion, while rescinding the Rule would avoid that confusion.
What Can We Do?
Defenders of clean water argue that the administration has no substantive reason to rescind the Clean Water Rule, as the proposal provides no argument against the scientific data and reasoning behind the 2015 Rule. Surfrider is very concerned with the administration’s proposal because rescinding the rule would mean less protection for 20 million acres of wetlands and 2 million miles of streams that provide drinking water for 117 million Americans. We are submitting comments to EPA stating such and are joining forces with a national network of organizations that are fighting to protect clean water.
As the proposal was just published in the Federal Register this week, citizens have thirty (30) days to submit comments opposing the rescission of the Clean Water Rule. Comments must be received on or by August 28, 2017. You can follow this link if you would like to submit a comment - select the rulemaking for 'Definition of Waters of the United States'. Here are some talking points you could consider sending in or personalize to make your own:
- Clean water is important to the majority of Americans and especially to me and my family.
- Clean water at the beach, where I work and my family recreates, starts with healthy waters upstream.
- The Clean Water Rule is necessary to protect water throughtout the watershed from mountain streams down to wetlands at the coast. It's all connected.
- The federal government should be doing more to protect clean water and the source of drinking water for 117 million Americans, not less. Our health and our economy depends on it.
- Rolling back environmental protections for clean water will only end up costing us more money in clean up and public health costs downstream.
- Americans deserve clean water to drink, fish and swim in. Don’t repeal the Clean Water Rule of 2015.