The Trump Administration plans to issue a new proposed rule to review and revise the definition of “waters of the United States” (WOTUS) this week. This is no surprise given that EPA Administrator Scott Pruitt has been one of the loudest critics of the Obama era Clean Water Rule. The Clean Water Rule sought to clarify the definition of "Waters of the United States." President Trump signed an executive order in February directing the EPA to re-codify the definition of WOTUS. This may not sound very important but if we want to protect our water resources, this is “YUUUUGE.”
The definition of “Waters of the United States” has changed and grown since the inception of the Clean Water Act in 1972. Various court cases and Presidential Administrations have attempted to clear the murkiness surrounding WOTUS. Why does all this matter? Section 404 the Clean Water Act, requires permits for the discharge of “any pollutants, including dredged or fill materials” into “navigable waters.” How do we define navigable waters? According to the Clean Water Act, navigable waters are “waters of the United States, including the territorial seas.” Well, how do we define “waters of the United States,” then? This is the question that has plagued many presidential administrations and agencies. This definition is more important now than ever with the looming threat of climate change and the growing scarcity of water.
The Obama administration understood the importance of our water resources and spent three years working on a more concrete definition of WOTUS, backed by hundreds of pages of scientific research as well as a very thorough economic benefits analysis. The Clean Water Rule was proposed in 2014 with the goal of clearly defining what is included under WOTUS. The rule was set to go into effect in August 2015 when it was put on hold by the Sixth Circuit Court of Appeals. It is still good law but it needs to be litigated so it currently sits in legal limbo. While this rule is on hold, the Trump Administration is hoping to get their new rule out there quickly in order to effectively kill the Obama Clean Water Rule, before the courts have a chance to review the Obama rule on its merits.
Trump’s proposed definition of WOTUS claims to return to the “status quo” before the Obama administration promulgated the Clean Water Rule. This is fails to mention that the status quo has been a time of utter confusion for government, industry, and environmentalists. These sectors have expressed frustration due to the lack of a clear-cut rule. Trump’s proposed rule focuses on using the Scalia test outlined in United States v. Rapanos. The Scalia test narrowly defines what a wetland is for purposes of the Clean Water Act and offers less protection for our wetlands and streams. This will hit Louisiana pretty hard because levees divide so many of our wetlands.. Under the Scalia test, these wetlands may go unprotected.
How can you help? Once the Trump rule is officially posted in the Federal Register, it will be open for notice and comment for 30 days. Thirty days is an incredibly short time for such an important and wide-reaching rule. Once the rule is posted to the Federal Register, GRN will send out a call to action on where and how to make your voice heard so be on the lookout for that!
Adrienne Wood is a GRN Legal intern beginning her 3rd year at LSU Law School.