Environment: EPA – Clean Water Rule

Missouri River, North Dakota


Nothing’s gotten big business and conservative groups all riled up like the EPA’s Clean Water Rule (aka Waters of the US, or WOTUS). The rule was adopted during the Obama administration under provisions of the Clean Water Act. It clarified and expanded the definition of wetlands and small waterways, and curbed development around waters connecting to groundwater supplies and those adjacent to headwaters of larger navigable streams already under federal jurisdiction.

Advocates for clean water and ecosystems saw the WOTUS rule as a positive move towards protecting watersheds from pollution. For example, agricultural runoff, particularly from the animal agriculture industry, appears to be the underlying cause of massive dead zones in the Gulf of Mexico, and expanding the reach of the Clean Water Act would have required big agribusiness interests to clean up their act. Heaven forbid the existence of any rule that cuts into profits or requires business to pay for the pollution they create. Needless to say, business interests – primarily agribusiness – spun the WOTUS rule as a federal power grab to regulate private property. Predictably, that argument resonated with many folks who just simply don’t like regulations or government in general.

As one can imagine, litigation ensued, and then we wound up with the Trump administration and an EPA that was more interested in protecting polluters than the environment. Fast forward to March 2017, when Trump’s EPA published a notice that it intended to “review and rescind or revise” the Clean Water Rule. It was a foregone conclusion that any “review” would only have one outcome, and sure enough, in early 2018 Trump’s EPA suspended the rule. The suspension was through 2020, allegedly to give the EPA more time to review and study the rule that had already been fully vetted during the prior adminstration.

Suspension of the rule engendered yet more litigation. If you want a deep dive into all this wonky goodness, the American Bar Association’s Section of Environment and Natural Resources Law has a web page with details on all the lawsuits that have been filed. The upshot is that as a result of two separate court decisions, the rule is suspended in 24 states.

However, enter the US District Court for South Carolina. On August 16, 2018, in a lawsuit filed by the South Carolina Coastal Conservation League and other environmental groups, it ruled that the EPA and US Army Corps of Engineers failed to comply with the Administrative Procedure Act when they issued the new rule suspending the Clean Water Rule. The opinion blocked the Trump administration’s rule suspending the Clean Water Rule. This decision effectively reinstates the Clean Water Rule in 26 states.

This is an interesting situation where the Clean Water Rule is now in effect in half the country, yet blocked in the other half. Time to queue up the appeals, and there’s a high likelihood we’ll see this issue taken up by the US Supreme Court. Stay tuned.