By Karen Okonta, NTH Project Professional
On February 28, 2017, President Trump signed an executive order that asks new EPA Administrator Scott Pruitt to begin the process of repealing and replacing the “Waters of the United States” rule. The Clean Water Rule, published in June 2015 as a technical rule, was an effort by the US EPA and the Army Corps of Engineers to clarify which streams and wetlands fall under federal clean water protection and avoid case-by-case determinations.
The rule, as explained by US EPA, protects navigable waterways and their tributaries that are, or show signs of, flowing water such as a bed, bank, or high water mark, and headwaters that have connection to downstream water. The rule also protects waters that are next to rivers and lakes and their tributaries and protects the nation's regional water features when they impact downstream waters. In addition, the rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream, and maintains the status of waters within municipal separate storm sewer systems.
The rule excludes manmade bodies of water, prior converted cropland, and ditches with ephemeral flow or do not flow, either directly or through another water, into a waters of the United States. Artificially irrigated areas, constructed lakes and ponds, reflecting pools, groundwater, including groundwater drained through subsurface drainage systems, and stormwater control features constructed to convey, treat, or store stormwater are also excluded.
There have been many challenges to the rule since it was published in 2015. Opponents of the rule, which include the U.S Chamber of Commerce, manufacturers, farmers, real estate developers, and golf course owners, among others, have stated that the rule is over reaching by defining ditches and intermittent streams as “waters of the U.S.” and stated that the rule would cause undue burden on businesses and industry. The main complaint is that the rule would require property owners to permit every ditch or puddle on their land, and significantly hinder economic development.
In his executive order, President Trump asked Scott Pruitt to consider the late justice Scalia’s opinion issued in 2006 on the subject, which provided protection to wetlands only if they had a continuous connection to navigable waterways and extended protection only to permanent streams.
The rule, however, cannot be repealed through executive order. It will have to go through the federal rule making process to replace it with a proposed rule. The rule has been, and is currently, on hold after a stay issued on October 9, 2015, by the 6th U.S. Circuit Court of Appeals.
For more information on water resources, please visit our Water Resources Market page.
The rule, as explained by US EPA, protects navigable waterways and their tributaries that are, or show signs of, flowing water such as a bed, bank, or high water mark, and headwaters that have connection to downstream water. The rule also protects waters that are next to rivers and lakes and their tributaries and protects the nation's regional water features when they impact downstream waters. In addition, the rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream, and maintains the status of waters within municipal separate storm sewer systems.
The rule excludes manmade bodies of water, prior converted cropland, and ditches with ephemeral flow or do not flow, either directly or through another water, into a waters of the United States. Artificially irrigated areas, constructed lakes and ponds, reflecting pools, groundwater, including groundwater drained through subsurface drainage systems, and stormwater control features constructed to convey, treat, or store stormwater are also excluded.
There have been many challenges to the rule since it was published in 2015. Opponents of the rule, which include the U.S Chamber of Commerce, manufacturers, farmers, real estate developers, and golf course owners, among others, have stated that the rule is over reaching by defining ditches and intermittent streams as “waters of the U.S.” and stated that the rule would cause undue burden on businesses and industry. The main complaint is that the rule would require property owners to permit every ditch or puddle on their land, and significantly hinder economic development.
In his executive order, President Trump asked Scott Pruitt to consider the late justice Scalia’s opinion issued in 2006 on the subject, which provided protection to wetlands only if they had a continuous connection to navigable waterways and extended protection only to permanent streams.
The rule, however, cannot be repealed through executive order. It will have to go through the federal rule making process to replace it with a proposed rule. The rule has been, and is currently, on hold after a stay issued on October 9, 2015, by the 6th U.S. Circuit Court of Appeals.
For more information on water resources, please visit our Water Resources Market page.
RSS Feed