Update: Trump Administration Finalizes Two-Year Delay of Clean Water Rule
The Trump Administration has delayed applicability of the 2015 Clean Water Rule, which was issued to provide protections for two million miles of waterways and millions of acres of wetlands. The 2015 rule had been stayed by the U.S. Court of Appeals for the Sixth Circuit. Subsequently, EPA and the U.S. Department of the Army on January 31, 2018, finalized a rule delaying applicability of the rule for two years – until February 6, 2020. Pre-2015 regulations defining “waters of the U.S.” are in effect as the administration proceeds toward proposing changes under the "Part 2" action described below. The Fall 2017 Unified Agenda for Federal Regulatory and Deregulatory Actions calls for proposal of a revised definition of “waters of the U.S.” in April 2018, with a final rule in June of 2019
1: Clean Water Rule Rollback Proposal
Comment period ended September 27, 2017
Docket ID EPA-HQ-OW-2017-0203
Docket information @ https://www.regulations.gov/docket?D=EPA-HQ-OW-2017-0203
The proposal would eliminate the scientific definition of "Waters of the U.S." created in the 2015 Clean Water Rule and revert to an old, unclear definition. Rather than finalize this proposal, the Trump EPA has delayed the applicability of the rule until February 6, 2020.
Part 2: Changing the Definition of "Waters of the U.S."
Fall teleconferences held; docket for written pre-proposal comments is closed
Docket ID No. EPA-HQ-OW-2017-0480
The Trump Administration has begun the public process to re-define "Waters of the United States." As expected, the Administration has signaled its intent to redefine "waters of the U.S." to include only navigable waters (the "Scalia" opinion).* https://www.epa.gov/wotus-rule/rulemaking-process
The process outlined by the Trump Administration for Part 2 is underway. The agencies have not proposed a rule and it’s not clear when they will do so. However, EPA and the Army Corps of Engineers held ten “outreach” teleconferences and one in-person meeting to gather public comments between September 19 and November 21. The teleconference schedule is here: https://www.epa.gov/wotus-rule/outreach-meetings
EPA also set up a docket to accept written pre-proposal comments to be included in the administration record of the regulation to revise the definition of "Waters of the U.S." under the Clean Water Act.
Docket information is available at https://www.regulations.gov/docket?D=EPA-HQ-OW-2017-0480. Note that this docket is separate from the docket for the Step 1 proposed rulemaking to re-codify the pre-existing regulations.
The agencies "will not be formally responding to verbal or written recommendations” at these sessions. It is not clear if there will be public hearings once a rule is proposed, but an opportunity for public comment on the proposal itself is legally required. We will post more information as it becomes available.
What’s at Risk, Talking Points and What You Can Do
The Trump Administration wants to remove Clean Water Act protections from 2 million miles of waterways and millions of acres of wetlands.1 Rollback of this rule would put drinking water at risk for 117 million Americans.2
Why the Clean Water Rule Was Created
The Clean Water Act was passed in 1972 with strong bi-partisan support. It is acknowledged to be one of our country’s most successful laws to protect human health and the environment. However, since the Clean Water Act was passed, the science of “hydrology” (the study of water) has substantially expanded our knowledge of how water moves and is affected by contaminants.
The original law does not contain a clear definition of which “waters” (rivers, streams, lakes, etc.) are protected by the Clean Water Act. The U.S. Supreme Court has considered this question several times, and created confusion by providing several different interpretations of which “waters” are protected by federal law.
From a scientific perspective, all waters are connected – and we all live downstream. Rivers that carry large volumes of water year round are fed by thousands of smaller streams (“headwaters”) and by adjacent wetlands. Pollution discharged into smaller streams and wetlands upstream will impact larger rivers downstream. This connectivity – including pollution flowing from smaller water bodies into downstream waters – is a hydrologic reality.
But regulations adopted some time ago to implement the Clean Water Act do not reflect this scientific reality. The Supreme Court decisions (containing contradictory legal tests) also don’t reflect the science. As a result, there has been considerable uncertainty for regulators and the regulated community about which waters are protected by the Clean Water Act.
EPA Final Rule (Before Proposed Rollback)
The Clean Water Rule (“Waters of the U.S.” or WOTUS rule) was issued in 2015 to more clearly define which “waters” are protected under the Clean Water Act. The Rule’s definition of protected waters is based on hydrologic science. It recognizes the real-world connectivity between large volume, “navigable” waters and smaller non-navigable streams and wetlands. The hydrologic system works a lot like our own blood system. Small blood vessels are connected to larger veins and arteries, and anything happening within those small veins can greatly impact the larger system. The Clean Water Rule protects tributary streams and wetlands that have impacts on downstream water.
Before finalizing the Clean Water Rule in 2015, EPA held more than 400 meetings with stakeholders across the country, and published a synthesis of more than 1200 peer-reviewed scientific publications. This scientific review showed that the small streams and wetlands protected by the Rule are vital to larger downstream waters. More than one million people commented during the Clean Water Rule’s rule-making process.
Trump Administration Rollback Proposal
The Trump Administration has a two-step plan to narrow the scope of Clean Water Act protections.
First, the Administration has delayed applicability of the 2015 Clean Water Rule for two years, until February 6, 2020. This action has returned us to the legal uncertainty (and case-by-case determinations) that the Clean Water Rule was designed to clear up.
Second, the Trump Administration has announced that it intends to issue a new rule with a different definition of which “waters” are protected by the Clean Water Act. The Administration would have to go through a new rule-making process to adopt its preferred definition.
The Trump Administration has signaled its intent to define Clean Water Act protections very narrowly, providing protections only to “navigable waters.” This definition would exclude thousands of miles of smaller streams and millions of acres of wetlands all across the U.S.. Since many of these smaller waterways are in the headwaters of larger rivers, pollution from these excluded streams would inevitably impact “navigable” waters downstream.
Myth-busting: Clearing Up Distortions About the Clean Water Rule
The Clean Water does NOT extend protection to “puddles” (a claim Scott Pruitt has made). The Clean Water Rule provides clearly defined physical and measurable boundaries to determine which waters are covered.3
The Clean Water Rule DOES protect streams that may be dry for some parts of the year – for the reasons outlined above. The Rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to be protected under the Clean Water Act.4
In the Western U.S., most of our rivers and streams are not “navigable” year around. Western watersheds characteristically include many miles of waterways where water may be only be present seasonally. The “navigability” test would remove Clean Water Act protections from most of our Western rivers – waterways that we depend on for drinking and irrigation, and that are critical to to the survival of fish and wildlife.
The Rule does NOT regulate irrigation ditches or eliminate existing agricultural exemptions from permit requirements. In fact, the Rule expands permit exclusions for farming, ranching and forestry.5
The Rule does NOT change the status of waters that are part of Municipal Separate Storm Systems (MS4s). Most MS4s are currently covered by statewide General Permits (although some states use individual permits). The status of these permits is not changed by the Clean Water Rule.6 Municipal wastewater treatment systems are also excluded.
The Rule does NOT regulate groundwater, shallow subsurface flows and tile drains.7
Suggested Talking Points
Clean water is essential to our public health as well as to our economy (cite local examples, i.e. tourism, agriculture, brewing industry, etc.).
Nearly 45 years after the passage of the Clean Water Act, we have made tremendous progress, but many of our rivers, lakes, and bays are still not safe for swimming or fishing. Rolling back the Clean Water Rule will set that progress back.
The Trump Administration’s proposed changes to the Clean Water Rule, coupled with the dramatic cuts to EPA budget, represent and all-out assault on public health and our environment.
The proposed rescinding of the 2015 Clean Water Rule would severely limit what waters are protected under the Clean Water Rule. It would put drinking water supplies for millions of Americans at risk. Clean water protections could be even more severely damaged if the Trump Administration were to reduce Clean Water Act coverage from the scope of coverage that existed prior to the Clean Water Rule.
Low income communities and communities of color are already disproportionately impacted by contaminated water. Contaminated water can cause a variety of health problems, especially for children. Repealing the Clean Water Rule could put many of these communities at further risk.
Small and rural communities, who rely on private wells or whose water systems lack the resources to deal with polluted sources, may be hit the hardest by the roll back.
We can’t support and grow small businesses by putting the natural water infrastructure they rely on at risk of destruction. We won’t protect public health by ignoring the science that water quality throughout a watershed depends on what happens to upstream waterways.
In the semi-arid West, most of our waterways do not run year around but rather flow seasonally or intermittently, and pollution from these waterways will ultimately flow downhill into permanent rivers and lakes, and the sea.
Sportsmen, conservationists, and recreationists know the critical importance of clean water and its essential role in maintaining fish and wildlife populations.
Rescinding the 2015 Clean Water Rule will result in regulatory confusion and uncertainty for the regulated community. The “repeal and replace” process for the Clean Water Rule is similar to the ongoing process for health care and will result in similar confusion.
Rolling back the rule will result in the same regulatory confusion that resulted in broad-based calls for clarity about which “waters” the Clean Water Act protects. Rolling back the rule is bad governance, bad for businesses who rely on regulatory certainty, and bad for our communities that deserve clean water.
Rescinding the 2015 Clean Water Rule will also place additional burdens on EPA and the Army Corps of Engineers at a time when these agencies are already under difficult staffing and budgetary constraints.
This is a critical and complex issue. The comment period for any new definition should be at least 120 days.
Any revision of the 2015 Clean Water Rule should be based on sound science and public input.
What You Can Do
It would be great if well-reasoned, fact-based comments were enough to win the day, but in today’s deregulatory environment, raising the political stakes of regulatory rollbacks is crucial to stopping or slowing them down. For rules that are particularly important to you, please consider taking one or more of the following steps, too.
- Write to your members of Congress and other elected officials. Let them know your concerns and ask them to weigh in with the agency proposing the rollback.
- Write letters to the editor and even op-eds in your local papers.
- Organize or participate in letter-writing campaigns.
- Join or organize demonstrations.
- Talk to your friends, colleagues and neighbors and encourage them to comment and otherwise join in this effort. Voicing your concerns on social media can be a very effective way to spread the word.
Links for More Information
EPA’s 2015 summaries of the Clean Water Rule:
EPA’s 2017 “Waters of the United States (WOTUS) Rulemaking” page https://www.epa.gov/wotus-rule
Federal Register notice proposing to rescind 2015 Clean Water Rule (definition of “Waters of the U.S.” https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-0001
Tools for Defenders
Background on the Clean Water Rule http://protectcleanwater.org/
(Includes State-by State Fact Sheets)
The National Wildlife Federation, “The Clean Water Rule: Protecting America’s Waters” http://www.nwf.org/What-We-Do/Protect-Habitat/Waters/Clean-Water-Act.aspx
(Background and history of the Clean Water Rule)
5 https://blog.epa.gov/blog/2015/06/clean-water-rule-and-agriculture/; https://archive.epa.gov/epa/cleanwaterrule/what-clean-water-rule-does-not-do.html; http://source.colostate.edu/farmers-ranchers-think-epa-clean-water-rule-goes-far/