Repeal & Replacement of Clean Water Rule Begins Today

WASHINGTON (CN) — The Trump administration’s formal repeal and replacement of the Obama-era Clean Water Rule begins Thursday, with publication in the Federal Register of the “recodification” of the term “Waters of the United States.”

The Environmental Protection Agency will take public comment for 30 days on the EPA proposal to “rescind” and “re-codify” the definition of U.S. waters under the Clean Water Act. It will guide all levels of government on the regulation of clean water.

The EPA announced the repeal and replacement in June. According to the document in the Federal Register, this will “review and revise the definition of ‘waters of the United States’ consistent with the Executive Order signed on February 28, 2017, ‘Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule.’ This first step proposes to rescind the definition of ‘waters of the United States’ in the Code of Federal Regulations to re-codify the definition of ‘waters of the United States,’ which currently governs administration of the Clean Water Act”.

The reversal will dismantle the proposal by President Barack Obama’s EPA to expand water pollution protections to waters beyond the traditional definition of navigable waters, interstate waters and territorial seas.

That rule, proposed in 2015, sought to provide more consistent federal protection of waters, including streams and wetlands. Agricultural and resource extraction industries protested, saying the rule would hurt their operations and in some cases violate individual property rights.

Several groups sued the EPA, saying the definition it promulgated was inconsistent with the Clean Water Act of 1972.

The Sixth Circuit stayed implementation of the rule while the courts sorted out the central question of whether the expanded definition did conform to water pollution rules.

On Wednesday, the EPA and Army Corps of Engineers agencies released guidance on the revised definition of protected waters as the regulations existed before the 2015 update.

“The agencies would apply the definition of ‘waters of the United States’ as it is currently being implemented, that is informed by applicable agency guidance documents and consistent with Supreme Court decisions and longstanding practice,” according to the rule as published in the Federal Register.

Under guidance provided by the U.S. Supreme Court in 2003, the definition of navigable waters extends to non-navigable tributaries to traditional navigable waters that are, themselves, relatively permanent waters, and adjacent wetlands.

Under Justice Anthony Kennedy’s guidance, wetlands are protected when there is a “significant nexus” between the wetlands and navigable waters downstream.

This concept has created uncertainty for regulators, some industries and the courts, prompting the development of the Clean Water Rule. But with the rescission process under way, uncertainty will continue.

“In a second step, the agencies will pursue notice-and-comment rulemaking in which the agencies will conduct a substantive re-evaluation of the definition of ‘waters of the United States,’” according to the summary in the Federal Register.

Comments may be sent within 30 days, identified by Docket ID No. EPA-HQ-OW-2017-0203, to http://www.regulations.gov.

(Photo shows the Columbia River Gorge.)

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