Policy Pulse: Clean Water Rule Update

The Trump administration officially began the process of dismantling the Clean Water Rule this summer when EPA and the Army Corps of Engineers published a notice in the Federal Register repealing the Clean Water Rule. After a public comment period (which closed September 27), the agencies can complete the repeal process.

Once the Clean Water Rule is repealed (and we have no reason to believe it will not be), we expect that EPA and the Corps will develop a new rule to define the term “waters of the United States” – a term used to determine which streams, wetlands, and other waters are protected by the Clean Water Act.

Unfortunately, the president has directed the agencies to define these protections based on a dissenting opinion offered by Supreme Court Justice Antonin Scalia in the Rapanos v. United States case of 2006. This minority opinion states that only streams that flow “continuously” and wetlands that have a ”continuous surface connection” to larger water bodies should be protected by the Clean Water Act as “waters of the United States.” Justice Scalia’s opinion is clearly not based on the science of water connections. Adopting this definition would undermine decades of progress in cleaning up our nation’s waters by removing protections for most small streams (because they do not flow all year) and millions of acres of wetlands. It would also undermine the fundamental purpose of the Clean Water Act: “to restore and maintain the chemical, physical, and biological integrity of the nation’s waters.”

Supporting common-sense, science-based protections for streams and wetlands should be a priority for every League member.