Battle over the Clean Water Rule: What's at stake?

The issue, which involves certain wetlands and temporary waterways, is likely to end up in court (again).

Melanie Stetson/Staff
This scene is from the Jamaica Bay Wildlife Refuge. Many wetlands fall into a gray area in terms of regulation under the Clean Water Act.

Just who gets to regulate America’s many seasonal streams and wetlands?

That’s a question that has long been contentious.

At the end of June, Environmental Protection Agency Administrator Scott Pruitt formally proposed revoking the Obama-era Clean Water Rule, also known as the “Waters of the US” rule, or WOTUS.

Mr. Pruitt was acting on an executive order signed by President Trump back in February. And depending on whom you talk to, the move to repeal the rule is either an environmental disaster that opens up America’s waterways to pollution and development and puts Americans’ drinking water at risk, or a common-sense action that gets rid of a rule particularly despised by many farmers, ranchers, and developers and returns regulatory authority to states.

Q: What is the rule? 

The term “Waters of the United States” comes from the landmark 1972 Clean Water Act. The 2015 Clean Water Rule was designed to provide long-sought guidance on just which “navigable waters” fall under federal jurisdiction and are covered by the protections in that act. 

Some waters, including permanent rivers and streams, clearly meet the definition. But many wetlands, seasonal streams, and ditches don’t necessarily qualify: They’re not connected to US waterways much of the time, even though they may ultimately feed into them.

In a 2006 US Supreme Court ruling to determine the jurisdiction, Rapanos v. United States, the court was split. Four conservative justices, led by Justice Antonin Scalia, offered a constrained definition that includes only “relatively permanent bodies of water.” Justice Anthony Kennedy concurred, but added that it should also include wetlands and intermittent streams that have a “significant nexus” to those waters – an opinion that has largely governed decisions since. 

The Clean Water Rule carried over existing exemptions for things like agriculture and ranching. It has never taken effect, as lawsuits from states (including one involving Mr. Pruitt when he was Oklahoma attorney general) are working their way through the courts. 

Q: What change is the EPA proposing? 

The rule the EPA has put forward – currently in the 30-day comment period – would mean going back to the standards used 10 years ago. Since the Clean Water Rule is currently under a stay, it wouldn’t actually change practice on the ground. 

There’s also some question about whether the repeal is fully legal – and it’s likely to be challenged in court. The EPA “can’t declare that within 30 days it’s going to stop following the law and ignore the standards that have been adopted” through long-standing administrative procedure, says Howard Learner, executive director of the Environmental Law & Policy Center, which supports the Clean Water Rule. 

In his executive order, Mr. Trump directed the EPA to redefine “navigable waters” in future rules in accordance with Justice Scalia’s definition – an action that would severely limit the waterways that the Clean Water Act applies to. This would also probably face legal challenges. 

Q: Why are environmental groups so opposed to the EPA’s move? 

While this move can seem like legal parsing, environmentalists emphasize how much is at stake – including drinking water for millions of Americans. “I know very few people who prefer to have dirty water,” says Robert Brooks, a geography and ecology professor at Pennsylvania State University who served on an EPA panel that reviewed the scientific evidence for the Clean Water Rule. 

Professor Brooks says he’s frustrated by the partisan divide that has made the rule so contentious. “This rule, had it been put into effect, would have made the boundaries a lot clearer without extending jurisdiction,” he says. “But because of political rhetoric, we are back to where we started, with trying to muddle through court decisions and develop guidance that is already out there.”

He and others see more potential harm if the EPA under Trump is able to adopt the rules it has said it wants. “If we were to go backwards in time and adopt the Scalia rule, I would guarantee that the quality of the water, all the aspects – physical, chemical, and biological – would be degraded and we would suffer the consequences,” Brooks says. 

Q: Why are others cheering the proposal? 

Numerous conservatives and industry groups – especially farmers, ranchers, and developers – saw the Clean Water Rule as a prime example of federal overreach that gave Washington jurisdiction to regulate waters it had no business being involved with, infringed on private property rights, and, if the rule were ever implemented, would be hugely burdensome to landowners. “The Trump administration today has taken the next step toward stopping Washington regulation of Tennessee farmers’ mud puddles,” said Sen. Lamar Alexander (R) of Tennessee in a statement when the EPA’s move was announced. 

For many farmers in particular, it’s simply too much federal regulation. “We take the approach that through voluntary, incentive-based conservation initiatives, we can address some of these issues,” says Brent Van Dyke, president of the National Association of Conservation Districts and a farmer in New Mexico. 

Mr. Van Dyke also contends that the Clean Water Rule was far from clear. “The definables they had in the new proposed rule, there were so many gray areas,” he says. “When a farmer is out there trying to plan what he is going to produce, we cannot have those gray areas.... We’re not anti-regulation, but we believe there are enough regulations on the books.”

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