The EPA Finalized the 2015 Clean Water Rule to Clarify “Confusion”

The finalized version of the water rule aims to clarify water resources management in the US under a provision of the Clean Water Act of 1972. EPA makers of the rule call it a new definition for “waters of the United States.”

• By Amanda Smiley
• Feb 12, 2020

Water is water is water. Well, not for the government, and certainly not for state and federal jurisdiction over those waters. The Environmental Protection Agency (EPA) recently announced a final revision of the 2015 version of the Clean Waters Act (CWA) that the Trump Administration says will help clarify confusion.

On January 23, 2020, the EPA announced a new, “clear” definition for “waters of the United States” (WOTUS)—which “protects the nation’s navigable waters from pollution and will result in economic growth across the country,” said the news release.

The Buzz
Obama’s 2015 version of the rule has been a debated topic in recent years, namely the process land and business owners must go through to get certain activities approved in relation to water source security. Supporters of a more aggressive Clean Water Act (not just Obama’s version) namely prioritize overall US water quality and the idea that a nation’s water system cannot simply be governed by individual states. Those in opposition to an aggressive CWA argue that the government should not govern a nation’s small bodies of water, and Obama’s version of project approval was timely and expensive.

Current EPA Administrator Andrew Wheeler supports the view that the Act has long been a source of confusion and expense for landowners. He is among those that think the new and revised rule will not only clarify the definition but also making it easier and more affordable for land and business owners to manage their resources as they please.

“EPA and the Army are providing much needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” Wheeler said.

“After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”

The History
The controversy over the Clean Water Rule starts years before, however. Although it’s generally focused on water protection, it’s mostly about drinking water and who owns what.

The Federal Water Pollution Control Act (“Clean Water Act” or CWA) was originally passed in 1972 after it was determined that over 60 percent of the nation’s waters had become unsafe for fishing or swimming. The goal of the original CWA was to both reduce pollution and restore the biological, chemical, and physical integrity of the nation’s waters.

Since its passing, the Act saw many years of continued dispute and adjustment. The goal still, overall, was to secure environmental protection.

In June of 2015, the CWA underwent further revision when “Agencies” (the EPA) and the Obama Administration aimed to extend jurisdiction to a number of lengths that, in some states’ opinions, were too generous. However, according to the EPA and the Administration, WOTUS should have jurisdictions over some 2 million miles of streams and 20 million acres of wetlands that provided drinking water.

Thirteen states sued, and a federal judge eventually halted the EPA from implementing it. This was considered a “win” for Republican lawmakers, the fossil fuel industry, small business groups, agriculture groups, and real estate developers. For them, the proposed rule gave the federal government too much control over small bodies of water.

In a separate case in October of 2015, the Sixth Circuit Court of Appeals stayed the Rule’s application nationwide, Congress passed a joint resolution overturning the Rule on the basis it covers certain waters that should not be classified as WOTUS and amounts to federal overreach into states’ rights over local waters. Following the decision, the Clean Water Rule was vetoed by President Obama.

Trump’s New Rule
The newest revision identifies four clear categories of waters that are federally regulated under the Clean Water Act: the territorial seas and traditional navigable waters, like the Atlantic Ocean and the Mississippi River; perennial and intermittent tributaries, such as College Creek, which flows to the James River near Williamsburg, Virginia; certain lakes, ponds, and impoundments, such as Children’s Lake in Boiling Springs, Pennsylvania; and wetlands that are adjacent to jurisdictional waters.

Waters not subject to federal control include features that only contain water in direct response to rainfall, groundwater, many ditches (including most farm and roadside ditches), prior converted cropland, farm and stock watering ponds, and waste treatment systems.

As the EPA’s news release states, the new rule “achieves the proper relationship between the federal government and states in managing land and water resources,” stating that states should have jurisdiction over their own land and water resources.

 

Who knew water would be such a controversial topic? As it turns out, the United States is not the only country struggling to agree on what to do with this Earth’s most abundant, and highly valued, resource.