Waters of the United States

The Clean Water Act revisited.

By John Farner

To fully understand the history of the Clean Water Act and the direction of the Trump administration, we must go back 70 years ago to 1948.

The same year Porsche was founded, the World Health Organization was created, and the first NASCAR race was held, the U.S. Congress passed the Federal Water Pollution Control Act to address water pollution. Growing public awareness and concern for controlling water pollution led to sweeping amendments in 1972, and as amended that year, the law became commonly known as the Clean Water Act.

From 1972 to, well, today, the Clean Water Act has gone through several legislative revisions and has been the subject of numerous lawsuits—a few of which ended up at the Supreme Court.

It is because of these court decisions the scope of the Clean Water Act, as passed by Congress, continued to regulate “navigable” bodies of water. Throughout the years, spanning nine presidential administrations, the U.S. Environmental Protection Agency was not consistent in administering the Clean Water Act, continuously stating the word “navigable”
was vague and needed to be removed.

While the agricultural and business communities supported the original intent of the Act, which was to regulate “navigable” bodies of water, various environmental organizations and elected officials felt it was time for the Act to go through a formal rulemaking process and give the EPA more clarity in how to enforce the Clean Water Act throughout the states.

Enter the Obama administration and the writing of the “Waters of the United States” rule, otherwise known as the “WOTUS.”

Without going into deep draconian detail on the specifics of the rule, it essentially defined the scope of the Clean Water Act to include “all” waters of the United States—not just navigable—with various exemptions.

As can be expected, this raised alarms across many sectors of the U.S. economy. From manufacturers to coal miners to farmers and ranchers, the thought of moving the regulation from navigable only to all waters was one that was unthinkable.

From the irrigation industry’s perspective, we also had significant concerns, including, but not limited to, the following:

  • Anything with flow (including ditches) would be considered a tributary; no examination of frequency or duration of flow
  • If it is not a tributary, use of an undefined, unlimited floodplain concept would make everything else adjacent
  • The rule specifically defines ditches as jurisdictional tributaries (first time ever)
  • Burdens to prove any water is not under the jurisdiction of the Clean Water Act or under an “exemption” would fall completely to the property owner.

There was also a concern of states’ rights when it came to managing water resources. Under this rule, water resources historically under the jurisdiction of state law would now be under the jurisdiction of the federal government.

Finally, as we all know, groundwater and surface water are interconnected. We learned this in elementary school science lessons in the form of the water cycle. While the EPA and the Obama administration stated it was not their intent to regulate groundwater, we saw significant opportunities as the rule was written for groundwater regulation to occur under the umbrella of the Clean Water Act.

After many months of comments submitted and responses from the EPA, a final rule, which was rebranded again as the “Clean Water Rule,” was finalized and released in 2015. Since then, the rule has been contested in litigation.

Following up on campaign promises, the Trump administration announced in 2017 its intent to review and rescind or revise the rule. Following a Supreme Court ruling on January 22, 2018, lifting a nationwide stay on the rule, the Trump administration formally suspended the rule until February 6, 2020.

This gives EPA Administrator Scott Pruitt more time to issue a draft proposal of replacement water regulations, with regulatory requirements more in line with what the Trump administration feels is the original intent of the Clean Water Act of 1972.

NGWA to Respond to EPA Request forComment on Groundwater/SurfaceWater Interaction
The National Ground Water Association is working with volunteers to provide public comment to a notice from the U.S. Environmental Protection Agency seeking feedback on the EPA’s previous statements on pollution of surface water from hydrologically connected sources.

At present, any effort to discharge pollutants into a “water of the United States” requires a permit under the Clean Water Act. However, groundwater is not regulated as a “water of the United States”—so pollutants discharged into groundwater are regulated separately.

But what happens when a “water of the United States”receives pollutant discharges via a hydrologically connected source like groundwater?

This is a question on which the EPA is seeking clarification. Case law has varied on the issue, and the EPA has previously made determinations on a case-by-case basis.

While the request for comment is not tied to any proposed rulemaking, it is likely related to its ongoing effort to rewrite the Waters of the United States rule, which has been the subject of significant debate in Washington, D.C., and within the court system.

NGWA is working with a group of volunteers to provide its expertise in guiding the EPA as it seeks more perspectives on surface water contamination from groundwater and other hydrologically connected sources. Comments are due May 21, 2018. The U.S. Congress has also indicated an interest in receiving an update from the EPA on whether it is planning to do any proposed rulemaking associated with this request for comment.

Lauren Schapker started with NGWA in November 2014 as the director of government affairs. Prior to joining the Association, she served as director of government and political affairs for the Portland Cement Association and a senior policy adviser for Xenophon Strategies, a firm which provides government relations and public affairs services. Schapker can be reached at lschapker@ngwa.org.

So, what’s next for the proposed rule, the administration, and Congress?

A fact that compounds everything is the proposed rule is still there, and if it is not withdrawn or rewritten, it will be the law of the land. For the rule to be withdrawn, Congress needs to act. In fact, Congress was close to doing just that as part of the omnibus spending bill that passed Congress in the early morning hours of March 23. However, the language repealing the rule was removed at the last minute due to negotiations.

The EPA is now caught up in an administrative gray area where they would like to rewrite the rule, but because the rule was made final under the Obama administration, they are currently unable to do so—even though it has yet to be implemented.

The clearest path to clarity, which rarely happens in Washington, would be for Congress to pass legislation repealing the 2015 rule, allowing the Trump administration the ability to move forward with their efforts in rewriting the Clean Water Rule.

But until this clarity on a path forward is provided by Congress, we will continue to see the Clean Water Act tied up in courts for the foreseeable future.

John Farner serves as the government and public affairs director for the Irrigation Association. With more than 15 years of experience in working with agricultural and landscape issues and more than 20 years working in government and public policy, Farner’s expertise in government and public affairs is closely aligned with issues affecting water use in agricultural production and landscape management. He can be reached at johnfarner@irrigation.org.