As ordered by the White House, the Environmental Protection Agency and Army Corps of Engineers will rescind the controversial "Waters of the U.S."
The agencies, with the Department of Army, are proposing a rule to rescind the Clean Water Rule and re-codify the regulatory text that existed prior to 2015 defining "waters of the United States" or WOTUS.
This action, according to a statement by the EPA, would, when finalized, “provide certainty in the interim, pending a second rulemaking in which the agencies will engage in a substantive re-evaluation of the definition of "waters of the United States." The proposed rule would be implemented in accordance with Supreme Court decisions, agency guidance, and longstanding practice.
"We are taking significant action to return power to the states and provide regulatory certainty to our nation's farmers and businesses," said EPA Administrator Scott Pruitt. "This is the first step in the two-step process to redefine 'waters of the U.S.' and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public."
This proposed rule follows the February 28, 2017, Executive Order issued by President Trump, "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule."
“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 Executive Order read. It ordered that the Environmental Protection Agency and the Army Corps of Engineers publish for notice and comment a proposed rule rescinding or revising the rule.
The agencies are ordered to consult with the U.S. Attorney General to facilitate decisions on whether to pursue or abandon any defense or prosecution before federal courts related to the rule.
The existing rule regulates the discharge of pollutants into “navigable waters,” defined as "the waters of the United States.” “The question of what is a "water of the United States" is one that has generated substantial interest and uncertainty, especially among states, small businesses, the agricultural communities, and environmental organizations, because it relates to the extent of jurisdiction for federal and relevant state regulations,” it says.
The scope of "waters of the United States," as defined by the prior regulations, has been subject to litigation in several U.S. Supreme Court cases, most recently in Rapanos v. United States (2006). In response to that decision, the agencies issued guidance regarding CWA jurisdiction in 2007, and revised it in 2008. The final rule took on the task of addressing definitional concerns.
“The Clean Water Rule ensures that waters protected under the Clean Water Act are more precisely defined, more predictably determined, and easier for businesses and industry to understand,” the EPA said at the time.
Specifically, the existing rule:
Defines and protects tributaries that impact the health of downstream waters.
Protects navigable waterways and their tributaries by determining that a tributary must show physical features of flowing water (a bed, bank, and ordinary high water mark) to warrant protection.
Protects waters that are next to rivers and lakes and their tributaries “because science shows that they impact downstream waters.”
Sets boundaries on covering nearby waters for the first time that are physical and measurable.
Limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream.
The U.S. Chamber of Commerce is among the business groups applauding the move. It has previously said that the rule would have given the EPA and the Corps “unprecedented permitting and enforcement authority over land use decisions that Congress did not authorize.”
“We commend EPA for taking an analytical approach to repealing and fixing the misguided WOTUS rule, said Bill Kovacs, the Chamber’s senior vice president for environment, technology, and regulatory affairs. “Now, all stakeholders will have an opportunity to provide public comment, and the agency will have the proper time to analyze the input and unwind a confusing rule that impacted America’s businesses, farmers, and land owners.”
“The final WOTUS rule issued by the last administration was unworkable, a fact acknowledged by courts around the country, and amounted to a massive grab of regulatory authority by an EPA that was overreaching,” he added. “We look forward to working with Administrator Pruitt and his team to craft a rule that protects public health and the environment, while giving clarity and certainty to our nation’s farmers and job creators.”
The Chamber—in addition to numerous other business associations and at least thirty states— filed lawsuits against the EPA and U.S. Army Corps of Engineers seeking to set aside the WOTUS regulation. The U.S. Court of Appeals for the Sixth Circuit Court put a nationwide hold on the regulation on Oct. 9, 2015.
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