Montana farm groups, attorney general praise repeal of Obama-era clean water rule
This state and 26 others sued the federal government in 2015 to prevent the Environmental Protection Agency and Army Corps of Engineers from expanding the federal control of waterways under the Clean Water Act. The so-called “Waters of the United States” rule sought to establish federal control over streams and waterways considered navigable.
Montana farm groups, home builders and county governments feared the new rule, established by presidential executive order without Congressional approval, would ultimately require federal approval for water bodies as small at roadside barrow pits and stock ponds.
“The EPA was adopting rules and those rules would have seriously impacted counties' ability to make roads,” said Harold Blattie, director of the Montana Association of Counties. “Their rule would have really hamstrung counties' ability to do routine maintenance.”
Imagine applying for a permit from the U.S. Army Corps of Engineers any time a barrow pit was constructed to catch storm water along a two-lane road, Blattie said. Because the permits can take several weeks, if not longer, counties found the decision easy to join a lawsuit opposing the Waters of the United States rule.
more background .........
The WOTUS Rule: Overdue Necessity Or Unnecessary Overburden?
The Clean Water Act (CWA) gives the federal government jurisdiction over navigable waters, and this has long been understood to include a certain amount of upstream (tributary) water in order to protect larger water features. However, “navigable waters” is defined as “the waters of the United States, including the territorial seas,” which is where interpretations start to get muddy. Years of jurisprudence have created a near impenetrable morass of definitions and elemental tests. The new rule is an attempt by the agencies to bring clarity to a question that has vexed courts (and everyone else) for some time now.
The rule—both in proposed and final version—has been summarized and analyzed in numerous places by various interests (see, for example, the American Water Works Association, The National Law Review, Center for Progressive Reform, or Environmental Law Prof Blog), so this description will be brief. The rule identifies six types of waters[1] that are categorically within the agencies’ jurisdiction and two categories of waters for which a case-by-case determination is required. Case-by-case analysis would be required if the water in question is either (1) a member of a series of named formations such as prairie potholes, Carolina and Delmarva Bays, pocosins,[2] western vernal pools[3] in California, or Texas coastal prairie wetlands, or (2) a water body that, due to its location within a certain distance from a high tide or high water mark of a jurisdictional water, has a “significant nexus” to that water. Having a significant nexus means “that a water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of [waters used in interstate or foreign commerce, interstate waters, and the territorial seas].” An effect is significant if it is more than speculative or insubstantial.
The philosophy behind the new rule seems very much in line with the Obama Administration’s prior environmental policy initiatives. The directional objective can be seen in actions such as the recent revision by the Council on Environmental Quality of the Principles, Requirements and Guidelines for Water and Land Related Resources Implementation Studies and the issuance of an executive order directing agencies to “use natural systems, ecosystem processes, and nature-based approaches when developing alternatives for consideration.” The administration’s policies have attempted to give more recognition to the interconnected nature of the effects that human activity can have on the environment, as well as nature’s value to humankind. The changes to the WOTUS rule underscore the importance to the administration of a more complete approach to analysis and understanding of ecosystems and the environment. As humans’ understanding of nature and ecosystems improves, pretending we can separate elements for regulations without impacting other elements is both naïve and foolhardy.
URL="https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/11/05/on-the-misuse-of-environmental-history-to-defend-the-epas-wotus-rule/?utm_term=.7de72678ffeb"]
On the misuse of environmental history to defend the EPA’s WOTUS rule [/URL]
So Boxer is wrong to suggest that curtailing federal regulatory authority would “[take] us back … to the day when rivers caught on fire,” as federal regulation had nothing to do with eliminating the problem of river fires. Whatever else the CWA has done for environmental protection, it had nothing to do with the end of river fires.
Boxer’s claim is wrong in a second way insofar as it suggests that voiding the new WOTUS rule would represent a significant rollback of environmental protection — to the levels that persisted in the 1960s. This too is wrong. The WOTUS rule is a brand-new regulation. It is a response to Supreme Court decisions in 2001 and 2006. So rejecting the WOTUS rule would restore the status quo ante that has existed for nearly a decade, leaving the Army Corps and EPA with the same regulatory authority that they enjoyed for the first six years of the Obama administration. Whether or not one believes this is sound policy, it is not turning back the clock on environmental protection to the days of river fires.