WASHINGTON, DC, March 1, 2017 (ENS) – The federal rule protecting the navigable waters of the United States will be reviewed for “consistency” with the policy of the Trump administration and rescinded or revised to conform to that policy, under an executive order signed Tuesday by President Donald Trump.
Trump’s policy is stated in the order. “It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.”
The review will be conducted by the Administrator of the Environmental Protection Agency Scott Pruitt, and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy. They will review the final rule entitled “Clean Water Rule: Definition of ‘Waters of the United States,'” 80 Fed. Reg. 37054 finalized June 29, 2015.
The definition of “navigable waters” is a longstanding point of contention and litigation in connection with protection of U.S. waters that are seasonal or are wetlands.
The term “navigable waterway” has been broadly interpreted by the Environmental Protection Agency to include areas connected to or linked to waters via tributaries or other similar means.
In his executive order, Trump directs that for future rulemaking, “the Administrator and the Assistant Secretary shall consider interpreting the term “navigable waters,” as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia of the U.S. Supreme Court in Rapanos v. United States, 547 U.S. 715 (2006).
In the Rapanos case, the Supreme Court’s nine justices were unable to produce a majority decision.
The case involves developers John Rapanos of Midland, Michigan and June Carabell whose separate projects were stopped because of the environmental regulations that make up the Clean Water Act.
In the late 1980s, Rapanos filled 22 acres of wetland that he owned with sand, in preparation for the construction of a mall, without filing for a permit. He argued that the land was not a wetland and that he was not breaking the law, but his own consultant and state employees disagreed. Rapanos claimed that his land was up to 20 miles from any navigable waterways.
Four justices voted to affirm the Clean Water Act. Four justices voted to vacate, to strike down the Corps interpretation of the Clean Water Act, and to remand back to the lower court under a new “continuous surface water connection” standard. Justice Kennedy also voted to vacate and remand but under the different, “significant nexus,” standard.
The Court voted 4-1-4. Because no single opinion received a majority of the votes, it is unclear which opinion sets forth the controlling test for wetlands jurisdiction.
Citing the confusion created by the Rapanos ruling, on June 29, 2015, the U.S. Army Corps and EPA promulgated a new 75-page regulation attempting to clarify the scope of waters of the United States, to take effect on August 28.
Thirteen states sued, and on August 27, 2015, U.S. Chief District Judge Ralph Erickson issued an injunction blocking the regulation in those states.
In separate litigation, on October 9, 2015 a divided federal appeals court stayed the rule’s application nationwide.
With Trump’s executive order, U.S. Senator John Barasso, a Wyoming Republican, got what he has wanted for years.
Barasso, who now chairs the Senate Committee on Environment and Public Works, introduced a bill on April 30, 2015 that directed the EPA and Army Corps of Engineers to issue a revised “waters of the United States” rule that he claims “protects navigable water from water pollution, while also protecting farmers, ranchers and private landowners.”
Barasso’s bill, the Federal Water Quality Protection Act (S. 1140), never became law.
“I applaud President Trump for working to curtail government overreach,” said Barrasso Tuesday in response to the executive order. “The Waters of the United States rule, issued under the Obama administration, placed backyard ponds, large puddles, and plowed farm fields under Washington’s control. Small businesses, farmers, and ranchers would be hurt by this excessive rule, and there was bipartisan opposition to it in Congress.”
“We need to clarify the distinction between state and federal waters,” said Barasso. “It is vital we do so in a responsible way that respects state and local authority while using common sense.”
U.S. Senator Tom Carper of Delaware, top Democrat on the Senate Environment and Public Works Committee, said, “The only thing today’s Executive Order makes clear is that clean water is not a priority for the Trump Administration.”
“We rely on the EPA to do the hard work of protecting our rivers and streams so that millions of Americans can be confident that the water their families drink or play in is clean,” said Carper.
“This Executive Order not only puts our nation’s streams and wetlands at risk of contamination, it also creates the uncertainty that Mr. Pruitt is, supposedly, so concerned about,” said Carper.
“For years, businesses, farmers, developers, state officials and even members of Congress urged the EPA to provide clarity regarding which streams and wetlands would be protected under the Clean Water Act,” Carper said. “In 2015, after holding hundreds of meetings with stakeholders, visiting affected sites across the country and responding to over one million public comments, EPA responded to these calls and finalized the Clean Water Rule to provide clearer guidelines and ensure that safe water quality standards are maintained in our rivers, bays and coastal waters.”
“If President Trump doesn’t think this rule is perfect, then he should tell his new EPA Administrator to roll up his sleeves and work to make it better. Instead,” said Carper, “he has allowed his EPA to abandon critical clean water protections, to limit protected waters, and to create even more uncertainty with the stroke of his pen.”
The environmental community is outraged and alarmed by this executive order, Trump’s second attack on the purity U.S. waters. The first was contained in an executive order during the first week of his presidency that allows mining companies to dump waste into streams.
Waterkeeper Alliance Executive Director Marc Yaggi said, “President Trump’s action today endangers all who depend on clean water, which is every single person and business in the country.”
“We all know that public health and our economy suffer when polluters discharge untreated sewage and industrial waste into any of our nation’s waters, including wetlands, streams, lakes, and rivers. We also know that pollution flows downstream and poisons larger waterways used for drinking water, fishing, and recreation,” Yaggi said. This is why Congress passed the Clean Water Act more than 40 years ago.
He said the Waterkeeper Alliance “will fight every effort to destroy these longstanding clean water protections.”