Clean Water Rule
The Clean Water Rule is a 2015 regulation published by the United States Environmental Protection Agency and the United States Army Corps of Engineers to clarify water resource management in the United States under a provision of the Clean Water Act of 1972. The regulation defined the scope of federal water protection in a more consistent manner, particularly over streams and wetlands which have a significant hydrological and ecological connection to traditional navigable waters, interstate waters, and territorial seas. It is also referred to as the Waters of the United States rule, which defines all bodies of water that fall under U.S. federal jurisdiction. The rule was published in response to concerns about lack of clarity over the act's scope from legislators at multiple levels, industry members, researchers and other science professionals, activists, and citizens.
The rule was contested in litigation. In 2017 the Trump administration announced its intent to review and rescind or revise the rule. A Supreme Court ruling on January 22, 2018 returned the rule's nationwide authority after a lower court decided that the rule was illegal. It gave back jurisdiction previously complicated by decisions from the circuit courts of appeals. Two weeks later, the Trump administration formally suspended the rule until February 6, 2020. The Trump administration formally repealed the WOTUS rule on September 12, 2019 and published a replacement rule on April 21, 2020. On August 30, 2021, the United States District Court for the District of Arizona threw out the 2020 replacement rule.
USACE and EPA published a revised definition of WOTUS on January 18, 2023, restoring the pre-2015 regulations on the scope of federal jurisdiction over waterways, effective March 20, 2023. On May 25, 2023, the Supreme Court narrowed the scope of the rule in ''Sackett v. Environmental Protection Agency.''
Key provisions of the rescinded 2015 rule
The 2015 rule ensured that CWA programs were more precisely defined, with the intent of saving time and avoiding costs and confusion in future implementation of the act. The objective was to make it easier for interested parties to predict what action would be taken by the EPA and what processes companies and other stakeholders would have to undergo for their projects and for permit issuance. There were no direct changes to the law under the Clean Water Rule. After analysis, the EPA and Department of the Army found that higher instance of water coverage would produce a 2:1 ratio of benefits to costs in implementation after the final rule. Implementation of the rule was to include the discerning of any implications for environmental justice communities. EPA and USACE had stated that "meaningful involvement from minority, low-income, and indigenous populations, as well as other stakeholders, has been a cornerstone of development of the final rule."Specific details that were clarified by the 2015 rule are outlined below.
- Defines more clearly the tributaries and adjacent waters that are under federal jurisdiction and explains how they are covered. A tributary, or upstream water, must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and have a significant connection to downstream waters. Adjacent waters are defined by three qualifying circumstances established by the rule. These can include wetlands, ponds, impoundments, and lakes which can impact the chemical, biological or physical integrity of neighboring waters.
- Carries over existing exclusions from the Clean Water Act. All existing exclusions from longstanding agency practices are officially established for the first time. Waters used in normal agricultural, ranching, or silvicultural activities, as well as certain defined ditches, prior converted cropland, and waste treatment systems continue to be excluded.
- Reduces categories of waters which are subject to case-by-case analysis. Before the rule, almost any water could be put through an analysis that remained case-specific, even if it would not be covered under the CWA. The rule limits use of case-specific analysis by providing certainty and clarity of protected vs non-protected water. Ultimately the rule saves time and avoids further evaluation and the need to take the case to court.
- Protects US "regional water treasures." Specific watersheds have been shown to impact downstream water health. The rule protects Texas coastal prairie wetlands, coastal depressions called Carolina Bays and the related seasonal Delmarva bays, western vernal pools in California, pocosins, and other prairie potholes, when impacting downstream waterways.
Defining "Waters of the United States"
''Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers''
The Solid Waste Agency of Northern Cook County, Illinois, was denied federal permits to develop an old gravel mine site into a landfill because migratory bird ponds had developed in abandoned excavation trenches on the property. The Supreme Court ruled in 2001 that the authority granted by CWA did not extend to abandoned gravel pits with seasonal ponds.''Rapanos v. United States''
In 1989, land developer John Rapanos filled on his property some 10–20 miles from the nearest navigable waters that his environmental consultant had classified as wetlands without a permit from the Michigan Department of Environmental Quality. Rapanos v. United States resulted in a 2006 Supreme Court decision with five justices concurring to vacate rulings against the defendants, but issuing three distinctly differing opinions, leaving uncertain which of the described tests defined the limit of the federal authority to regulate wetlands. The resulting ambiguity became a part of the stated rationale for EPA rulemaking activity that resulted in the 2015 WOTUS rule.Development
Following the SWANCC ruling, the EPA issued guidelines in 2003 restricting regulatory review of some 20 million acres of isolated wetlands and gave advance notice of proposed rulemaking which would substantially narrow the scope of WOTUS and weaken CWA protections. After strong opposition from Congress the planned legislation was abandoned, to the relief of environmental advocates and disappointment of land development groups who sought a reduction in federal wetlands protection.The lack of a majority opinion in the 2006 Rapanos case prompted a second set of EPA guidelines directing the agency to determine wetlands protection on a case-by-case basis. This contributed to an uptick in lawsuits for the next 8 years challenging the EPA's regulatory authority over streams and wetlands. Seeking to reduce confusion and to restore the original scope of WOTUS to pre-SWANCC levels, repeated unsuccessful attempts were made to pass a bill called the "Clean Water Authority Restoration Act" in each Congress from 2002 to 2010.
In April 2011, the EPA, under the Barack Obama administration, proposed a new set of guidelines to replace the two issued under the Bush administration. These guidelines formed the basis of what became the Clean Water Rule. In contrast to the manner in which the 2003 and 2007 guidelines were issued, the EPA and the USACE conducted peer-reviewed hydrological studies, interagency reviews, and economic analyses before publishing a formal proposed rule on April 21, 2014.
On May 27, 2015, after a public comment period and numerous meetings with state entities, public and private stakeholders, then-EPA Administrator Gina McCarthy along with Assistant Army Secretary Jo-Ellen Darcy signed the Clean Water Rule, set to become effective in August of that year.
Implications for stakeholders
EPA had stated that the 2015 rule created no additional burden for stakeholders working in agriculture since there was no change to the exemptions for activities necessary to forestry, ranching, or farming. The rule provided clearer protection of many waters of the U.S. that, if polluted, could have detrimental effects on drinking water, habitats, and flood-prone areas. One U.S. water news organization stressed that, while the rule was an update to the CWA, there is still a need for more regulation since more than half of the nation's streams and rivers do not meet standards and most pollution issues come from nonpoint sources, such as agricultural runoff. Many people, 117 million according to EPA, rely on drinking water, in addition to many others who subside on fishing, from sources protected under the implementation of the rule.Low-income communities and communities of color are more often at risk of being affected by pollution. It has also been evidenced that, "states conduct fewer regulatory enforcement actions in counties with higher levels of poverty." The Environmental Justice Coalition for Water expressed, in its comment on the rule, the need to "strengthen the categorical protections" to wetlands, to minimize flooding and support pollution remediation.
While there are no direct implications for indigenous peoples, tribal communities were consulted during the process of finalizing the Clean Water Rule. A separate, revised interpretive rule under CWA section 518 stated that tribal lands should be treated as states and was made effective in May 2016. This amendment is important for giving people living on reservations access to EPA regulation and federal grants; tribes no longer need to "demonstrate inherent authority to regulate" their waters.
The regulation at the state level is determined by the strength of federal coverage and some stakeholders consider the rule to be overreach by the government. There is concern from private landowners, including small business owners and farmers, that this "rule will lead to radical environmental groups suing homeowners and small businesses," and, ultimately, "increased regulatory costs, less economic development, fewer jobs."