On February 28, President Donald Trump issued an executive order for review of the waters of the United States (WOTUS) rule of the Clean Water Act — specifically, how such waters are defined (80 Fed. Reg. 37054; June 29, 2015) — in part to minimize regulatory uncertainty. The president’s order directs the administrator of the Environmental Protection Agency (EPA) and the assistant secretary of the Army for Civil Works to “consider interpreting the term ‘navigable waters,’ as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006).”

In that case, Scalia wrote, “On its only plausible interpretation, the phrase ‘the waters of the United States’ includes only those relatively permanent, standing, or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams[,] … oceans, rivers, [and] lakes.’ The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”

The American Road & Transportation Builders Association (ARTBA) said in a press release that the president’s executive order “removes an unnecessary obstacle that would have delayed transportation improvement projects.” ARTBA said that it told the EPA on multiple occasions that “roadside ditches are not — and should not be regulated as — traditional jurisdictional wetlands as they are not connected water bodies and they contribute to the public health and safety of the nation by dispersing water from roadways.”

However, the WOTUS rule did not categorically exempt roadside ditches from federal jurisdiction, ARTBA said. Instead, the EPA decided a litany of qualifications must be met before a roadside ditch can be deemed exempt from federal permitting requirements.

According to ARTBA, the EPA’s approach added another layer of burdensome permitting requirements, created confusion, and increased permitting delays for transportation projects. The WOTUS rule, the association said, would also likely be used as a litigation tool to delay projects and, in the process, make them more expensive for taxpayers. 

Environmental concerns

In response to the presidents’s executive order, Sierra Club Executive Director Michael Brune said, “Donald Trump is sacrificing the right to clean drinking water for more than 117 million Americans just to make corporate polluters richer. After just weeks in office, Trump has made it obvious that he could not care less about protecting the water we drink. First, he signed away safeguards protecting our streams from coal-mining waste and now he wants to gut a rule that protects the drinking water for more than one in three Americans.

“Trump’s Dirty Water Order is a massive waste of taxpayer resources that will leave wetlands and streams at risk of pollution and destruction,” Brune said. “These are the places families swim, fish, play, and enjoy, and when we leave them unprotected, we know from experience that polluters will exploit them. After all, the EPA and the Clean Water Act were created in large part because of the Cuyahoga River disaster, when a river became so polluted it actually caught on fire.

“Trump’s decision today is a path to dirtier water and more toxic disasters. Like we did after the Cuyahoga fire, we will use every avenue available to us to fight back and protect America’s water resources.”

EPA actions

Following the president’s executive order on Feb. 28, EPA Administrator Scott Pruitt said in a statement, “EPA intends to immediately implement the executive order and submit a Notice to the Office of the Federal Register announcing our intent to review the 2015 Rule, and then to propose a new rule that will rescind or revise that rule. The president’s action today preserves a federal role in protecting water, but it also restores the states’ important role in the regulation of water.”

During the Obama administration, the EPA had said that the 2015 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,” (https://www.epa.gov/cleanwaterrule/what-clean-water-rule-does; last updated May 18, 2016; accessed March 2, 2017) and that the 2015 rule:

  • Clearly defines and protects tributaries that impact the health of downstream waters — The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water — a bed, bank, and ordinary high water mark — to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
  • Provides certainty in how far safeguards extend to nearby waters — The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.
  • Protects the nation’s regional water treasures — Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
  • Focuses on streams, not ditches — The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.
  • Maintains the status of waters within Municipal Separate Storm Sewer Systems — The rule does not change how those waters are treated and encourages the use of green infrastructure.
  • Reduces the use of case-specific analysis of waters — Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.

In developing the 2015 rule that is now under review, the EPA said that it and the Army Corps of Engineers held hundreds of meetings with stakeholders across the country; reviewed more than 1 million public comments; listened to perspectives from all sides; and used the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies that showed that small streams and wetlands play an integral role in the health of larger downstream water bodies.

Additionally, the EPA had said (www.epa.gov/cleanwaterrule/what-clean-water-rule-does-not-do; last updated May 18, 2016; accessed 3/1/17) that the 2015 Clean Water Rule does not:

  • protect any types of waters that have not historically been covered by the Clean Water Act;
  • add any new requirements for agriculture;
  • interfere with or change private property rights;
  • regulate most ditches;
  • change policy on irrigation or water transfers;
  • address land use;
  • cover erosional features such as gullies, rills, and non-wetland swales; and
  • include groundwater, shallow subsurface flow, and tile drains.

As of press time, the EPA had not proposed a new rule.