Efforts Underway to Repeal and Replace the 2015 Clean Water Rule

Under the Clean Water Act (CWA), the Federal Government has the ability to regulate pollutants that flow into “navigable waters,” although courts and legislative bodies have had difficulty in precisely defining that term for several decades.

The 2015 Clean Water Rule was intended to clarify the definition of a “navigable” body of water, and was based on the opinion written by Justice Anthony Kennedy in a 2006 Supreme Court case. He argued that waters could fall under the jurisdiction of the CWA if they have a “significant nexus” to navigable waters.

The Clean Water Rule was developed using the best available science— from more than 1,200 high-quality, peer-reviewed and published studies—which provided evidence regarding the effects that streams, non-tidal wetlands, and open waters have on larger downstream waters such as rivers, lakes, estuaries, and oceans. These waters play an important role in protecting drinking water, fisheries habitats, moderating flooding, and other functions critical to health and safety. Extensive outreach to a wide range of stakeholders during the review process resulted in over 1,400 comments being provided during the six-month comment period.

The Environmental Protection Agency (EPA) and Department of Army are now proposing a rule to rescind the Clean Water Rule and re-codify the regulatory text that existed prior to 2015 defining the Clean Water Act “waters of the United States” or WOTUS. 

Proposing to re-codify the regulations that existed before the 2015 Clean Water Rule “will provide continuity and certainty for regulated entities, the States, agency staff, and the public,” according to the agencies. It has been likened to “maintaining the status quo.”

The proposed rule “Definition of ‘Waters of the United States’-Re-codification of Pre-existing Rules” was filed in the Federal Register on July 27, 2017.

The EPA produced an excellent review document, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” which was intended to help inform policy and regulatory decisions, including the Clean Water Rule.

A second step, in which the agencies will pursue notice-and-comment rule-making for a substantive re-evaluation of the appropriate scope of “waters of the United States” is planned in order to fulfill the intentions of the Executive Order issued in February 2017. There have been no indications as to how long this rule-making may take.

What is NALMS doing? / What can you do?

• The public comment period will be open until August 28, 2017. NALMS members are encouraged to provide comments during this abbreviated comment period. For guidance on what to include in your comments, see the example letter on the American Fisheries Society website.
  • UPDATE: the public comment period has been extended to September 27, 2017.
• The Consortium of Aquatic Science Societies (CASS) has developed a Statement on WOTUS, which has been posted on Facebook. NALMS is a new member of this consortium, and in addition to encouraging our membership to comment on the WOTUS rule by the August 28thdeadline, the Board of Directors is developing comments on behalf of our Society. NALMS will continue to track this and other issues at the federal level through our membership in CASS.
• If you have any questions or would like to help draft NALMS comments or position statements on the WOTUS rule change, please contact Diane Lauritsen (ddlauritsen@comcast.net) or Perry Thomas (perry.thomas@vermont.gov).