By EMRY DINMAN
Basin Business Journal
On Dec. 11, the federal Environmental Protection Agency and the Army Corps of Engineers presented a change to the definition of the Waters of the United States that would limit the bodies of water protected by the Clean Water Act.
The change was requested by the Trump administration and Republican lawmakers, including Rep. Dan Newhouse, R-WA. It comes three years after another rule change by the EPA under the Obama administration that had broadened the definition to include not only navigable waters like the Columbia River, but also streams and wetlands that connected to navigable waters.
“A clear rule that defines ‘navigable waters’ in a way that does not require a team of lawyers and consultants to determine if the federal EPA has jurisdiction over land and is within the scope of the Clean Water Act is something all Americans have needed for several decades,” said the Agricultural Retailers Association in a statement. “This proposed rule appears to draw bright lines on jurisdiction to remove confusion while protecting clean water.”
Between 2006 and 2015, polluters came under strict scrutiny if their activities could negatively impact large waterways, but polluters isolated from these larger waters were unaffected by the law. After the 2015 rule change, however, polluters who could affect waters that eventually reached major waterways suddenly came under the scrutiny of the EPA.
Critics considered the Obama-era rule change an act of regulatory overreach that would negatively impact developers and landowners located on most of the country’s landmass.
The Obama-era rule was not a new development, however. Throughout the history of the Clean Water Act, the definition of Waters of the United States had been applied to a wide array of the nation’s waters and wetlands and was challenged numerous times in the Supreme Court. In the landmark 2006 Rapanos case, a split Supreme Court decision suggested that any waterways with a “significant nexus” to a navigable waterway would be protected by federal regulations, and called on federal agencies to establish what constitutes a significant nexus.
In 2015, an EPA study found that “ephemeral” and intermittent streams, which the EPA said make up almost 60 percent of all U.S. streams and are only apparent during flooding or strong rains, almost all have a significant nexus to larger bodies of water and thus are protected. This study was followed shortly by an EPA rule change that once again enforced the Clean Water Act on these smaller, intermittent streams and wetlands, as had previously been the case.
The change, though it sought to clarify a rule that had been litigated off and on for years, was immediately challenged by critics as a major power grab and regulatory overreach by the federal government.
“I have voted numerous times to repeal WOTUS because it gives unprecedented power to unelected bureaucrats to reinterpret the definition of a ‘navigable waterway,’” Newhouse said in a September statement. “This negatively affects farmers and ranchers across the country and in Central Washington.”
In response, the Trump administration in July 2017 called on the EPA to roll back the rule to its pre-2015 standing to no longer include ephemeral or intermittent streams. That request was delivered by the EPA earlier this month.
Additionally, the EPA suspended the 2015 rule earlier this year in anticipation of the replacement that came mid-December. In November, the rule’s suspension was halted in 26 states, including Washington, by a western Washington federal court judge who claimed the EPA had not followed the proper procedures to do so. The suspension will not affect the EPA’s December rule change.
After the rule is published in the National Register, the nation’s official publication for rules and proposed rules, the new proposal will be subject to a 60-day public comment period before it can be enacted. Those wishing to comment can do so at www.regulations.gov.