Both-Sides Reporting on New Clean Water Act Rule- Let’s Collect Them!

Navigable waters? What would EPA have decided?

While the Clean Water Act isn’t usually part of our TSW portfolio, since Matthew brought it up here (and see other stories brought up by Brian Hawthorne here in the comments as well as some legal history by Kevin Turnblom here. I’d be interested in what your local papers have to say about it, or whether they use the AP story.

The AP story here started off with ..

“WASHINGTON (AP) — The Trump administration on Thursday ended federal protection for many of the nation’s millions of miles of streams, arroyos and wetlands, a sweeping environmental rollback that could leave the waterways more vulnerable to pollution from development, industry and farms.”

As Kevin Turnblom pointed out, If a judge throws a rule out because it’s illegal, and a reg is never enforced (so nothing has ever been protected by it) then.. is the next one really a “rollback”? It’s clearly not a rollback in Physical World (where water exists).

I did run across a story in the Colorado Springs Gazette by Tom Roeder that tried to show both sides and also gave some local context.. here’s a link and below are some excerpts.

Under the old rule, enacted by the Obama administration in 2015, federal authorities took a broad, and some say nebulous, view of their powers to stop water pollution.

The 2015 rule enforced federal regulation on “intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds.”

The Obama-era rule covered an estimated 60 percent of U.S. waters.

That meant actions that could impact those waters required a federal permit. The rules prompted a string of court battles, and even the Supreme Court called defining which waters were federal “a contentious and difficult task.”

The lawsuits meant the Obama-era rules never took full effect, and left the EPA scrambling for a definition of federal waters that would pass judicial muster.

President Donald Trump made rolling back the water regulation a plank in his 2016 campaign as he wooed farmers and ranchers.

But the rollback took years as the EPA wrangled over rules and faced a firestorm from environmental groups.

You gotta love Colorado politics, though. Our governor, who seemingly would think that our state is capable of regulating water quality, especially since there is a D majority in the House and Senate said:

Colorado’s Democratic Gov. Jared Polis issued a scathing statement about the rule change.

“Our administration will continue to reject attempts by the Trump administration to gut proven ways to protect our health and environment,” he said.

How could it be a “proven” way if the reg had never been in force?

Meanwhile, both the Colorado Springs mayor and local Congressperson argue for not federalizing what needn’t be federalized.

Suthers said those waters that won’t be regulated by the feds will still have plenty of oversight, but from state and local authorities rather than the EPA.

“Anything that happens there will be in the jurisdiction of the state of Colorado,” said Suthers, who served as the state’s attorney general before winning the city’s top job.

Lamborn said having locals regulate more water issues is the best solution.

“If you believe in federalism, then units of government that are closer to the people should regulate those decisions,” he said.

Here’s another interesting statement from this piece:

I haven’t checked this for accuracy but the author says..(about the 2015 non-implemented rule).

EPA estimated that the final Clean Water Rule expanded the types of water subject to Clean Water Act jurisdiction by about 3 percent, or 1,500 acres nationwide. Opponents clearly think it could be much broader – and until they see the rule implemented on the landscape, their fears may have some basis in fact.

Meanwhile Matthew’s post headline said “millions of acres.” It might be interesting for someone to go back and check the 2015 regulation. The difference might well be in assumptions about how it might have been interpreted, which we never found out because it wasn’t ever implemented.

Here’s the American Farm Bureau’s side of the story:

The 2015 rule grants the federal government regulatory control over virtually any waters – and many land areas that only temporarily hold water – assuming a scope of authority Congress never authorized. It effectively eliminates any constraints the term “navigable” previously imposed on the agencies’ Clean Water Act jurisdiction, and few, if any, waters would fall outside of federal control.

The 2015 rule provides none of the clarity and certainty it promised. Instead, it creates confusion and risk by giving the agencies almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects, including common farm ditches, ephemeral drainages, agricultural ponds and isolated wetlands found in and near farms and ranches across the nation, no matter how small or seemingly unconnected they may be to true “navigable waters.”

The 2015 rule defines terms such as “tributary” and “adjacent” in ways that make it impossible for farmers and ranchers to know whether the specific ditches, ephemeral drains or low areas on their land will be deemed “waters of the U.S.” But these definitions are broad enough to give regulators (and citizen plaintiffs) justification to assert that such areas are subject to Clean Water Act regulation and give the agencies sweeping new authority to regulate land use, which they may exercise at will, or at the whim of a citizen plaintiff.

16 thoughts on “Both-Sides Reporting on New Clean Water Act Rule- Let’s Collect Them!”

  1. Here’s the reaction from the Washington Governor and Attorney General, via Spokane media:

    Predictable. WA had sued to block the revocation of the 2015 rule, and will certainly sue to block the new rule.

    I’m hoping to find in-depth local coverage from the Spokane area, where there’s a diverse mix of clearly navigable waters, clearly isolated ephemeral wetlands, and ambiguous streams and wetlands. But so far local news seems to just be regurgitating the AP story.

      • It’s a legal mess. Twenty-seven states sued against the 2015 rule, and various courts blocked its implementation nationwide, or only in those states.

        When the administration suspended then rescinded the rule, 14 other states sued to keep the rule. FWIW Washington, Oregon and California sued to keep the 2015 rule. Every other western state except Oklahoma sued against it.

        It’s unclear whether the 2015 rule was ever applied in states that didn’t sue (ambiguous coverage and conflicting district court rulings), but I don’t think it was. It’s worth reminding everyone nothing prevents a state from applying federal (or stricter) standards to state waters.

        • Thanks, Kevin! I still can’t understand why governors would choose to be regulated by the feds and the associated federal employees, when they have their own employees and can have their own statutes exactly the way they want.

          • Because lots of water issues cross state boundaries, I’d imagine, and because they have the foresight to understand that polluters have the political/financial power to block pollution limits at the state level, but have a tougher time of stopping the federal government from curbing pollution. Unless Republicans are in power obviously.

            Witness what happens when communities try to restrict lawn-and-garden pesticide use. The industry runs straight over them and gets states to pass laws preventing communities from doing so—and under Trump, industry-representing conservatives tried to pass a federal law that would forbid local pesticide regulations. (See: Thankfully it failed.

            That’s pesticides rather than water pollution, but it’s the same dynamic. Towns, cities, and states are at the mercy of big money.

  2. According to the Washington Post:

    On his third anniversary in office this week, Trump has racked up more than 16,200 false or misleading claims, according to a running tally kept by The Washington Post’s Fact Checker team.

    Of those statements, ranging from half-truths to outright whoppers, 492 concerned energy and environmental issues.

  3. I did a very brief search of news releases from AG & Multiple Use interests and found only short info blurbs. All were very similar. Two below, one from the Western Governors’ Association. WGA calls it the “Water Supply Rule” but I’m pretty sure its the same. They included a link to a letter in support.

    National Cattlemen’s Beef Association
    NCBA on New Water Rule: “Some Power Has Been Put Back in Hands of Landowners”
    Western Governors’ Association
    Western Governors applaud withdrawal of Water Supply Rule

    • Brian, I don’t think the Water Supply Rule is the same as WOTUS. I’ll contact the WGA media folks and see what I can find out about whether they’ve addressed it.

    • OK, I checked with WGA. They took no position on WOTUS regs but it appears that the Water Supply Rule was an idea from the Obama Administration. The language of their letter is interesting:

      Dear Assistant Secretary James:
      The purpose of this letter is to express support for the announced withdrawal of the U.S. Army Corps of Engineers’ proposed rulemaking, Policy for Domestic, Municipal, and Industrial Water
      Supply Uses of Reservoir Projects Operated by the Department of the Army, U.S. Army Corps of Engineers (RIN: 0710-AA72; Docket ID: COE-2016-0016). Since 2013, the Western Governors’ Association (WGA) has expressed concerns – through comments, letters, and congressional testimony – on the substance of the proposed rule as well as the process by which it was developed. The proposed rule, which was launched under the prior Administration, threatened to interfere with states’ primary authority to manage and allocate water resources within their boundaries. In addition, the Corps promulgated the rule without genuine consultation with state officials and without properly acknowledging the various federalism implications the proposed rule would have
      had if finalized. You recognized these deficiencies in a September 23, 2019 Memorandum in which you directed the Corps to “halt issuing a final Water Supply Rule for a minimum of six months” and to “continue the ongoing consultation and coordination” with appropriate states, tribes, and stakeholders. The announced withdrawal of the proposed rule is a welcome outcome of the Corps’
      States have a vital role in the implementation of several Corps programs, due to states’ inherent and sovereign authority over water resources, as well as their statutory role as co-regulators under the federal Clean Water Act. Western Governors applaud the Administration for its withdrawal of this proposed rule and look forward to continuing to work with you to strengthen state-federal partnerships and to ensure that all Corps reservoirs are operated in compliance with state and federal law.

      Lots of words about state-federal partnerships and co-regulators under the CWA. Logically, issues of federalism and water with CWA regs would trigger the same kinds of concerns. Perhaps the govs were unable to get agreement because different states had different views, as Kevin Turnblom pointed out with the court cases. Maybe national environmental groups put pressure on some govs vis a vis the CWA regs. I don’t know if I’d want a gov who honestly didn’t believe in federalism.

  4. Just a reminder per Farm Bureau Assoc comments- often overlooked is CWA section 404f which still stands and will continue to protect ordinary farmings practices from CWA regs. 2015 proposed WOTUS would not have changed that. A lot of agriculture alarmist language is misleading.
    Trump’s proposal is really a boon to developers and polluters.

    • Caroline, I think their point is that they weren’t sure what they would need a permit for. Even the Court found the interpretation of navigable waters confusing. Putting your livelihood in the hands of unknown federal bureaucrats would be scary I think.

      • Actually, section 404f has been around a long time and is routinely applied. The 2015 rule would have applied to ground breaking for new ag fields, but again mostly for developers. And farmers wanting to sell their land for development.

      • Actually 404f has been routinely applied for eons. The 2015 WOTUS did not change that. What would have been impacted would be developers and existing ag land sold for development.

  5. The Grand Junction Daily Sentinel (Colorado) had an oped by Greg Walcher on the new WOTS rule.
    Turning an aircraft carrier

    Some excerpts:
    “WOTUS represented one of the great power-grabs in government history. By redefining “waters of the U.S.,” Obama-era officials asserted federal authority (virtual ownership) over almost all water in the country — not only large lakes, rivers, and oceans, but also streams, creeks, wetlands, ponds, parking lot puddles, and irrigation ditches. Nothing in the law justified such a broad sweep.

    The new rule, released this week, is unfortunately still much broader than the law justifies. The Clean Water Act, which sought to control pollution of the nation’s major waterways, contains the phrase “waters of the U.S.” in 12 places. Of those, nine use the phrase “navigable waters of the U.S.,” and the other three refer specifically to barges and the Gulf Inter-Coastal Waterway. “Navigable waters” were defined as “waters of the U.S.,” meaning the terms are synonymous. There are no waters of the U.S. that are not navigable. Not in the law.

    Nevertheless, the new rule continues to assert federal jurisdiction over waters never intended by Congress. On the plus side, it includes a final definition of what are, and are not, waters of the U.S. It specifically disclaims federal jurisdiction over farms, ranches, irrigation ditches, stock ponds, wastewater treatment systems, and rainwater runoff. But in addition to “territorial seas and navigable waters,” the definition still includes “perennial and intermittent tributaries to those waters,” “certain lakes, ponds, and impoundments,” and “wetlands adjacent to jurisdictional waters.”

    The Clean Water Act contains 111,542 words, but “tributary” is not one of them. Nor did it ever contemplate federal regulation of all wetlands that happen to be adjacent to navigable water. The rule ought to say exactly what the law says (“navigable waters of the U.S.”) and nothing more.”


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