On Wednesday January 31, 2018, US EPA administrator Scott Pruitt formally filed legal documents that suspend the 2015 Clean Water Rule for two years, paving the way for his team to develop new industry-friendly regulations. This move marks a continuation of the Trump administration’s promise to reduce, limit, or streamline government regulation wherever it can, and represents follow-through on the February 28, 2017 Presidential Directive to “review and rescind or revise the Clean Water Rule,” which was published in the Federal Register on March 6, 2017. That Federal Register publication is of particular importance in the way it seeks to revise the definition of Waters of the US.
The 2015 Clean Water Rule sought to make the process of identifying Waters of the US easier to understand, more predictable, and more consistent with the best-available science while enhancing the “protection of the nation’s public health and aquatic resources.” It was developed in response to numerous requests from government, conservation, academic, agricultural, and private industry stakeholders who wanted further certainty beyond the post-Rapanos (Rapanos v. United States) guidance documents that were produced in 2007 and 2008. Jurisdiction for three general categories was recognized: 1) waters that are jurisdictional in all instances, 2) waters that are excluded from CWA jurisdiction, and 3) waters subject to a case-specific analysis to determine whether they are jurisdictional. By providing the three categories above, the 2015 rule would give wetland and waterbody delineators and the regulated public some clear direction when making jurisdictional determinations relative to environmental planning or preparing Section 404 permit applications for dredge and/or fill impacts to Waters of the US.
Constraining the definition of “Waters of the US”
The Trump administration and the current EPA have decided to rescind the 2015 Clean Water Rule and are in the process of drafting a new, revised one that’s anticipated to limit the regulation of wetland and waterbody impacts from agricultural, industrial, and governmental projects. It appears that Pruitt and his staff’s interpretation of the definition of Waters of the US is consistent with Justice Scalia’s opinion in Rapanos. This would likely translate to a revised rule with a much narrower definition of regulated waters under the CWA, and would include only “relatively permanent, standing or continuously flowing bodies of water forming geographic features that are normally described as streams, oceans, rivers, and lakes.” It would not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rain storm events. The specific use of the word “intermittently” may be cause for concern—under the current jurisdictional determination process, which incorporates the dissenting opinion of Justice Kennedy in Rapanos, a stream with intermittent flow is considered to be a seasonal relatively permanent water (RPW) and, as such, subject to regulation.
Similarly, the opinion of Justice Scalia in Rapanos suggests that only wetlands with a “continuous surface connection to Waters of the US” are regulated as jurisdictional waters under the CWA. In other words, if a wetland is not directly “abutting” a stream or other Water of the US, and is only neighboring or “adjacent,” then no federal regulation would exist. When considering the important functions and values of wetlands, such as flood control, groundwater recharge, pollution filtration, and terrestrial and aquatic wildlife habitat, this interpretation may allow impacts to important natural resources without requiring a permit or compensatory mitigation. Oxbow lakes, floodplain backswamps, Carolina Bays, California vernal pools, playa lakes, and prairie pothole wetland ecosystems may no longer be protected resources under the EPA’s new rule.
Pruitt’s replacement of the 2015 rule could lead to less required environmental impact analysis and associated permitting, which may create a more business-friendly federal regulatory climate. However, the development of a new rule should not overlook the significant benefits of natural resource conservation to both people and the environment. Headwater streams and wetlands are the kidneys of our watersheds. They perform vital water quality and quantity enhancement functions and help maintain a drinking water supply sufficient for all Americans to have clean water coming out of the tap. In the long run, if federal regulation of Waters of the US continues to roll back, it may be up to each state or local government to decide how they will mitigate flooding and keep drinking water sources pure.