U.S. Clean Water Act Gets Another Overhaul

February 20, 2020

Last month saw another major reduction of the United States federally mandated Clean Water Act (CWA).

The Trump administration made good on its promise to remove millions of miles of streams and roughly half of the country’s wetlands from federal protection by issuing the Navigable Waters Protection Rule. It’s the largest rollback since the law was restructured in 1972.

According to an Environmental Protection Agency (EPA) press release, this ruleprovides a new, clear definition for ‘waters of the United States’ (WOTUS) … that protects the nation’s navigable waters from pollution and will result in economic growth across the country.”

Specifically, the rule states that ephemeral bodies of water are not subject to federal regulation. This refers to those that form after rainfall or that flow only part of the year. This exception also applies to waste treatment systems, groundwater, prior converted cropland and farm watering ponds.

This is step two of a two-step process. Last October, EPA and the Department of the Army published a final rule that repealed a 2015 ruling issued by President Obama on the definition of “Waters of the United States,” which many states and the Trump administration felt was confusing and unnecessarily restrictive.

Another reason for the change is that the Trump administration is a firm believer that states should regulate their own environmental affairs, including waterways.

“All states have their own protections for waters within their borders, and many regulate more broadly than the federal government,” Andrew Wheeler, EPA Administrator, told reporters on a conference call in Las Vegas before the announcement. “And it clearly details which waters are subject to federal control under the Clean Water Act and, importantly, which waters fall solely under the states’ jurisdiction,” he added.

The industries most likely to be impacted by this change include agriculture, homebuilding, mining, and oil and gas. They welcome the clarifications on permitting requirements.

For example, if one wishes to build a facility in Louisiana where there are many wetland areas, this new ruling may significantly cut out the federal red tape and time involved to obtain permits. This in turn, serves to lessen the lead time and save money.

However, as early as last December when the proposed rollback was taking shape, 14 states sued the EPA over the impending rule change. According to New York State Attorney General Letitia James, “This regressive rule ignores science and the law and strips our waters of basic protections under the Clean Water Act.”

Also, in a draft letter posted online late last month, the 41-member EPA Science Advisory Board, which is made up largely of Trump administration appointees, said the revised definition rule “decreases protection for our Nation’s waters and does not support the objective of restoring and maintaining ‘the chemical, physical and biological integrity of these waters.’”

EPA and the Army held a public webcast last week to help explain the key elements of the final Navigable Waters Protection Rule. A recording is available online.


Laurie Toupin