Waters of the United States: Revisited

Jacqueline Mietus
Senior Editor
L
oyola University Chicago School of Law, JD 2019

Under the Obama administration, the Environmental Protection Agency and the Army Corps of Engineers promulgated the Waters of the United States rule, which defined “Waters of the United States” to include small bodies of water, such as rivers and wetlands. However, in early 2018, the Trump administration suspended the rule to re-assess the definition. By the end of 2018, the EPA and the United States Department of Army released a new definition of “Waters of the United States,” restricting the definition to traditional navigable waters and their tributaries, certain ditches, certain lakes and ponds, impoundments and wetlands that are adjacent to water specifically covered by the rule.

Promulgation and Suspension of the 2015 Waters of the United States Rule

In 2015, under the Obama administration, the Environmental Protection Agency (“EPA”) and the Army Corps of Engineers promulgated the Waters of the United States rule (“Rule”), which re-defined the application of the Clean Water Act. The Rule extended existing federal regulations of large bodies of water to include small bodies as well. The Rule was designed to control pollution in approximately 60% of the country’s bodies of water.

While campaigning for the 2016 Presidential Election, President Trump declared the Rule to be one of the worst examples of federal regulation. Quickly after taking office, on February 28, 2017, President Trump issued Executive Order 13778: “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The Executive Order permitted Scott Pruitt, the EPA Administrator at the time, to begin the process of rescinding and replacing the Rule. In January 2018, Pruitt filed the required legal documents to suspend the Rule for two years. During that time, the EPA and the United States Department of the Army were to re-consider the Rule, specifically, the definition of “Waters of the United States.”

Waters of the United States Re-Defined

On December 11, 2018, the EPA issued a news release recommending a new “Waters of the United States” definition. Under the proposal, “traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated.” The proposal further clarifies that bodies of water such as groundwater, ditches, storm water control features, and waste treatment systems would not fall under federal regulation.

EPA Acting Administrator Andrew Wheeler stated, “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways.” According to the EPA, the proposal allows flexibility for states and landowners in determining how to manage their land and water. Concurrently, the proposal protects a portion of the nation’s waters, as intended by the Clean Water Act. The EPA posited the new definition would protect navigable waters while encouraging economic growth, reducing impediments to business development, and increasing cost savings.

Reactions to the New Definition

For decades there has been a battle regarding the definition of “Waters of the United States.” The Obama administration promulgated a broad definition, believing that a wide range of bodies of water must be regulated in order to decrease pollution. In contrast, the Trump administration believes the definition should be more limited.

Environmentalists deem the new definition of “Waters of the United States” will result in more pollution and endanger people’s health and safety. Theresa Pierno, the president and CEO of the National Parks Conservation Association, asserted, “We need more protections, not less, when it comes to clean water… The proposed rule will take us back five decades in our effort to clean up our waterways. In fact, the administration’s rule will actually pave the way for pollution that threatens our drinking water and national park waterways.” Environmental groups are already threatening to take legal action.

In contrast, many manufacturers and farmers are in favor of the proposal. Farmers claimed that the old definition impeded on their freedom to use their land, causing negative economic impacts. Furthermore, Jay Timmons, the president and CEO of National Association of Manufacturers, stated. “The uncertainty created by the overreaching and unfair 2015 WOTUS rule threatened manufacturing jobs, and it failed to protect clean water adequately.” Timmons maintained that the new definition constitutes a step in the right direction.

The Trump administration anticipates finalizing the new definition next year. Until then, the EPA and the Army will accept comments regarding the proposal for 60 days following its publication in the Federal Register. In addition, both agencies will hold a webcast and a listening session in January 2019.

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