Written by Chloe Marie – Research Specialist
The Obama administration promulgated the Clean Water Rule (CWR) on June
29, 2015, with a stated purpose of better defining the scope of “waters of the
United States” that are protected under the Clean Water Act. This regulatory
action was criticized by farm groups and others who viewed the entire approach
as constituting government overreach. Shortly after being elected, President
Donald Trump indicated his intention to loosen the bonds of environmental
constraint on the industry, and as a result supported a revision of the CWR.
This article will provide some background on the regulatory process
concerning the revision of the CWR as well as an overview of the content of recent
proposed rulemaking.
Background
On February 28, 2017, President Donald Trump issued a Presidential
Executive Order to revise, amend, or rescind the Clean Water Rule
(CWR) promulgated by the Obama administration. President Trump directed the
U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps)
to initiate steps towards such revision in the national interest – the Executive
Order emphasizes the necessity to “ensure that the Nation’s navigable waters
are kept free from pollution, while at the same time promoting economic growth,
minimizing regulatory uncertainty, and showing due regard for the roles of the
Congress and the States under the Constitution.”
Consequently, on March 6, 2017, the two federal agencies published in
the Federal Register a Notice
of Intent to review and rescind or revise the CWR. The Notice states
that the agencies will provide a revised interpretation of the term “navigable
waters” in conformity with the opinion of Justice Scalia in Rapanos
v. United States to allow for clarity on how the Clean Water Act
applies to the stakeholders’ activities.
On July 27, 2017, the agencies issued a Proposed
Rule setting out milestones for reviewing and revising the CWR. As a
first step, EPA and the Corps proposed to rescind the 2015 definition of
“waters of the United States.” They proposed to re-establish the regulatory
definitions of U.S. waters that existed prior to the enactment of the 2015 CWR.
The proposed rule also specified that “nothing in this proposed rule restricts
the ability of States to protect waters within their boundaries by defining the
scope of waters regulated under State law more broadly than the federal law
definition.” The second step was to develop a new definition of the U.S. waters
subject to a separate notice and comment rulemaking. The public comment period on
this Proposed Rule closed on September 27, 2017.
On June 29, 2018, the agencies published a supplemental
notice of proposed rulemaking to the proposed repeal of the 2015 CWR
providing further clarification and seeking additional comments on the impacts
of permanently repealing the 2015 rule in its entirety. The additional public
comment period closed on August 13, 2018.
Most recently, EPA and the Corps issued a pre-publication
version of a proposed revised definition of “Waters of the United
States” on December 11, 2018.
Proposed Revised Definition of “Waters of the United
States”
The agencies propose to include the following terms into the definition
of U.S. waters: “traditional navigable waters, comprising the territorial seas;
tributaries that contribute perennial or intermittent flow to such waters;
certain ditches; certain lakes and ponds; impoundments of otherwise
jurisdictional waters; and wetlands adjacent to other jurisdictional waters.”
The agencies also propose to redefine the terms tributary, ditches,
adjacent wetlands, abut, and direct hydrologic surface connection. Further, the
proposed rule clarifies the concept of “waters of the United States,” which
would not be defined as broadly as in the 2015 CWR. In this regard, the agencies
explained that U.S. waters must be understood within the ordinary meaning of
the term and would include oceans, rivers, streams, lakes, ponds, and wetlands.
The definition of U.S. waters in the proposal would exclude water
features “that flow only in response to precipitation; groundwater, including
groundwater drained through subsurface drainage systems; certain ditches; prior
converted cropland; artificially irrigated areas that would revert to upland if
artificial irrigation ceases; certain artificial lakes and ponds constructed in
upland; water-filled depressions created in upland incidental to mining or
construction activity; stormwater control features excavated or constructed in
upland to convey, treat, infiltrate, or store stormwater run-off; wastewater
recycling structures constructed in upland; and waste treatment systems.”
The proposed rule suggests that developing geospatial datasets of U.S.
waters could help in jurisdictional determinations. The proposal states that
“these datasets, when fully developed, would promote greater regulatory
certainty and relieve some of the regulatory burden associated with determining
the need for a permit and play an important part in helping to attain the goals
of the CWA.”
On December 28, 2018, EPA and the Corps announced
that a public hearing will be held in Kansas City, KS, on January 23, 2019 to
provide interested parties an opportunity to present their comments on the
proposed revised definition.
Stay tuned for further legal and regulatory developments!
References:
- Exec. Order No. 13778, 82 Fed. Reg. 12497 (Mar. 3,
2017)
- Notice of Intent; Intention to Review and Rescind or
Revise the Clean Water Rule, 82 Fed. Reg. 12532 (Mar. 6, 2017)
- Proposed Rule; Definition of “Waters of the United
States” -Recodification of Pre-Existing Rules, 82 Fed. Reg. 34899 (July 27,
2017)
- Supplemental Notice of Proposed Rulemaking; Definition
of “Waters of the United States” -Recodification of Pre-Existing Rules, 83 Fed.
Reg. 32227 (July 12, 2018)
- Proposed Rule; Revised Definition of “Waters of the
United States,” U.S. EPA Pre-Publication Version (Dec. 11, 2018)
- Notice of Public Hearing; Revised Definition of
“Waters of the United States,” 83 Fed. Reg. 67174 (Dec. 28, 2018)
Additional resources on this topic from the Center for
Agricultural and Shale Law:
This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.
