EPA Administrator E. Scott Pruitt and Douglas Lamont, the senior official performing the duties of the assistant secretary of the Army for Civil Works, have signed a “Notice of Intention to Review and Rescind or Revise the Clean Water Rule,” also known as the Waters of the United States Rule. EPA is submitting the notice for publication in the Federal Register.
Administrator Pruitt’s actions follow President Trump signature on an executive order on February 28 instructing a review of a the controversial regulation, which was issued during the Obama Administration. The Waters of the United States Rule attempts to define which waters of the United States are subject to jurisdiction under the Clean Water Act.
American Farm Bureau President Zippy Duvall, who witnessed Trump’s signing of the order, said “This is a win for farmers and ranchers and farm bureaus across the country. No one knows what’s better for the land than the men and woman who live on it and take care of it.”
“Relief is on the way,” EPA Administrator Pruitt said recently at a American Farm Bureau Federation meeting in Maryland. “That rule reflected a power grab” and would, if allowed to stand, regulatory “dry creek beds and puddles.”
Opponents of the Waters of the United States Rule criticize the federal government for overreach by adopting the rule, questioning to what extent can the federal government dictate activities affecting the wetlands, rivers and streams that feed into major water bodies. Supporters of the rule maintain the regulation is necessary to protect public health.
The controversy has spurred two separate Supreme Court decisions as well as a more recent federal appellate court ruling, as the two previous administrations sought to resolve the matter through executive actions.
The two Supreme Court decisions came down in 2001 and 2006, during the George W. Bush administration. Those decisions fostered uncertainly as to what actually falls under federal jurisdiction under the Clean Water Act. Because of that uncertainly, the Obama administration issued the 2015 rule to clarify the scope of federal jurisdiction. However, opponents said the rule was an overreach that vastly expanded federal jurisdiction. Legal challenges ensured in several states. The U.S. Court of Appeals for the 6th Circuit issued a nationwide stay, halting the rule from going into effect. The rule has been in limbo every since.
Litigation has now shifted to the Supreme Court, which has decided to tackle the question of where the case should be adjudicated–in federal district courts, as sought by the industry and environmental groups challenging it, or in the federal circuit courts of appeals, as the government argues. The Supreme Court case is proceeding slowly. Briefs and the government’s response are due by late May.
