Should the U.S. Supreme Court decide that challenges against EPA’s Clean Water Rule (CWR or waters of the United States (WOTUS)) be heard in the U.S. District Courts and not the U.S. Appeals Courts, the nationwide stay of the CWR issued by the 6th Circuit will be lifted, and the CWR will take effect.
To avoid that eventuality, the Trump administration has initiated a review of the rule with the intention of revising it or rescinding it altogether. But that rulemaking process is not likely to be completed before the Supreme Court issues its opinion on jurisdiction. The Supreme Court denied the Trump administration’s request to hold the jurisdictional case in abeyance while the review of the rule and subsequent rulemaking proceed.
A Better Alternative?
What all this indicates is that the CWR and its fate are very hot and uncertain issues. One of the common claims against the rule is that its technical, scientific, and legal bases are all fundamentally flawed. Yet, the Obama administration stated, again and again, that the rule—which defines the essential Clean Water Act (CWA) term waters of the United States—was requested by many state agencies, as well as the Army Corps of Engineers (Corps), which all wanted a better alternative than difficult, site-specific, jurisdictional determinations they needed to make when a CWA permit was requested regarding a water that was not navigable.
Washington lawmakers have been dueling across the aisle over the CWR ever since it was published in June 2015, and there is no indication that those battles will cease while the rule continues to be litigated. The Senate Committee on Environment and Public Works (EPW) held its most recent hearing on the CWR on Wednesday, April 26, 2017. Predictably, EPW Chair John Barrasso (R-WY) and Ranking Member Tom Carper (D-DE) squared off in their opening statements.
Corps Shut Out?
Barrasso summarized the reasons why the CWR does not have a leg to stand on. First, he noted that the Corps, the agency that jointly issued the CWR with the EPA, was “shut out of the process of writing the final rule.” Given that the Corps is the agency that performs the on-the-ground inspections that identify what water is federally regulated, “if the rule is not based on their experience, that means it has no technical basis,” said Barrasso.
Regarding the science, Barrasso refers to testimony of a former member of EPA’s Science Advisory Board, which reviewed EPA’s Science Report on water connectivity. According to Barrasso, the report reaches the conclusion that “all water is connected.” This, Barrasso continues, may be true in terms of the water cycle taught to 4th graders but “has nothing to do with jurisdiction. This means that the EPA’s Science Report cannot be used to justify the WOTUS Rule.”
How Carper Would Have Done It
In his own statement, Carper emphasized the need for the CWR to resolve the “burdensome, time-consuming, expensive, unpredictable, and confusing process of determining what is covered by the Clean Water Act and what is not.”
Carper noted that if he had to write a WOTUS definition, he would need to complete five essential tasks:
- Analyze all the available peer-reviewed science.
- Host hundreds of public meetings across the country.
- Ensure all who wish could have their say.
- Review a million comments “if I had to.”
- Consult with the states, affected industries, farmers, fisherman, and the best water minds around.
And all that is exactly what the EPA did in writing the CWR, said Carper.
“This Rule has been a long time coming,” said Carper. “It is well informed by science and experience. It treads a moderate line between the extreme desires of interests at both ends. And it is the product of a massive public engagement effort.”
Testimony from the latest EPW hearing on the CWR is here.