CLEAN WATER ACT RECENT CHANGES
In 2015, the Obama administration, assisted by the U.S. Army Corps of Engineers (“Corps”) and the Environmental Protection Agency (“EPA”), enacted the 2015 Clean Water Rule. The goal of this rule was to clear up uncertainty, provide clarity, and was intended to give scientific guidance to assist the Corps and EPA with their decisions as to what waters were protected under the CWA. Under Obama’s rule, waterbodies protected by federal law captured and included much smaller bodies of water, in an effort to stop pollution found in smaller waterbodies from reaching larger water sources, including sources used for drinking water.
TRUMP ADMINISTRATION CHANGES
The Trump administration repealed the 2015 Clean Water Rule and replaced it with the Navigable Waters Protection Rule, effective December 23, 2019. In doing so, the rule changed certain aspects of the 1972 Clean Water Act (“CWA”). When Congress passed the CWA, it established that all “waters of the United States” or “WOTUS” would be under federal protection, with WOTUS commonly defined or understood to be “navigable waters”1 in the United States of America. However, there has historically been various levels of debate and uncertainty as to what waters are truly protected under the CWA.
The Trump administration’s actions as to the 2015 Clean Water Rule essentially removed large portions of the science-based standards put in to place in 2015 and cut certain waterbodies across the nation out of the protections of the CWA. The waterbodies that were cut were no longer under the federal clean water standards, but instead were to operate under the scope of state and local authorities and regulations.
From the standpoint of environmentalists, Trump’s rule “[was] going back to the lowest level of protection we’ve seen in the last 50 years, leaving millions of Americans vulnerable to polluted water.”2 The EPA also stated that the rule conflicted with established science and ran counter to the objectives of the CWA.
Larger environmental groups prepared to sue under the Trump rule and a coalition of fourteen (14) states brought suit, arguing that the rule “ignore[ed] studies showing how small bodies of water…connect with and impact larger bodies of water more typically targeted for regulation.”
WOTUS TODAY – BIDEN ADMINISTRATION
From the standpoint of farmers and other industry groups, many felt Obama’s Clean Water Rule “was too far-reaching,” Trump’s rule helped reduce unnecessary federal oversight, and proponents of the Trump rule also believed that a “diminished federal role would leave a greater share of water supervision to the states.”3
The Obama rule from 2015 left many farm and industry groups with a feeling of confusion. Is water puddled in a ditch under federal protection? Are weather-dependent and seasonal flows under federal protection? The new rule under Trump is viewed as more favorable by these groups because of the certainty it provides and the restrictions it removes.
Only time will tell if our nation is capable of agreeing on a definition for WOTUS. Until then, most will have to wait and see if our water is perceived to be better protected under one rule as opposed to another.
Today, given the challenges faced, and in response to the case of Pascua Yaqui Tribe v. U.S. Environmental Protection Agency, the EPA announced in June of 2022 that the agency would utilize the pre-2015 regulatory regime until further notice.
For now, WOTUS should be viewed under 40 CFR 230.3(s):
All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
All interstate waters including interstate wetlands;
All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: a. which are or could be used by interstate or foreign travelers for recreational or other purposes; or b. from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or c. which are used or could be used for industrial purposes by industries in interstate commerce;
All impoundments of waters otherwise defined as waters of the United States under this definition;
Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
The territorial sea;
Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.