September 12, 2019
Contact: Amy Kober, 503-708-1145, [email protected]
Washington – Continuing its assault on rivers and clean water nationwide, the Trump administration today released its final rule repealing the Obama administration’s Clean Water Rule. Promulgated in 2015, the Clean Water Rule clarified the definition of “waters of the United States” and the jurisdiction of the Clean Water Act. Repeal of the Clean Water Rule will return the nation to pre-2015 rules and the regulatory confusion and paralysis that resulted from the Supreme Court’s SWANCC and Rapanos rulings. Those rulings severely undermined federal protections for small streams, headwater streams and wetlands, threatening clean drinking water sources and rivers nationwide.
Bob Irvin, President and CEO of American Rivers, released the following statement:
“The millions of children newly back to school could give this administration’s officials a basic science lesson: wetlands and streams connect to larger rivers. They are vitally important to protecting water quality for all of our communities. The destruction we cause upstream impacts our neighbors downstream.”
“We need to be doing more as a nation, not less, to safeguard clean water. With millions from New Jersey to California lacking access to safe drinking water, and with toxic algae from North Carolina to Oregon threatening public health and our pets, now is not the time to create more loopholes for polluters.”
“American Rivers is fighting back against this administration’s rollbacks and we believe, ultimately, we’ll succeed. Not only because we have science and the law on our side. But because a healthy river is more valuable to a community than a dead, polluted one. And, because clean water and healthy rivers are absolutely vital to our nation’s security and our future.”
For almost thirty years after its enactment in 1972, the Clean Water Act was broadly interpreted to provide comprehensive protections to waters across the country. However, following two Supreme Court decisions in 2001 and 2006, uncertainty arose about Clean Water Act jurisdiction over small streams and wetlands, putting the health of rivers and the communities that depend upon them at risk. In defining “waters of the United States”, the case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC) called into question the Clean Water Act’s jurisdiction over isolated wetlands. While the opinion of the Supreme Court only held that isolated wetlands could not be considered jurisdictional waters solely on their basis as habitat for migratory birds, the practical result was that very few isolated wetlands were considered to be jurisdictional.
Five years later, in Rapanos v. United States, 547 U.S. 715 (2006) (Rapanos) the Supreme Court took up the question of the proper test for determining if a small stream or wetland was “jurisdictional” under the Clean Water Act. Justice Scalia, joined by three other Justices, issued a plurality opinion for the Court, with a separate concurring opinion by Justice Kennedy, and a dissenting opinion written by Justice Stevens with three other Justices joining. The result was three contradictory opinions. The confusion created by SWANCC and Rapanos amongst federal courts, the Environmental Protection Agency and the U.S. Army Corps of Engineers led to virtual paralysis of the long-accepted regulatory scheme that protects small streams and wetlands.
In 2015, after engaging in an extensive outreach program, conducting an exhaustive scientific review, and preparing a comprehensive legal analysis, EPA and the Corps published the Clean Water Rule (also referred to as the Waters of the United States (WOTUS) Rule), a regulation that clearly and comprehensively defines what waters are protected by the Clean Water Act. In the four years that the two agencies worked to craft the rule, they reviewed over 1,200 scientific studies, collected over 1,000,000 public comments, drafted over 6,000 pages of responses, and held over 400 public meetings. American Rivers was active in this process, both at the administrative and congressional levels. The final rule better protects small streams (including headwater, intermittent, and ephemeral streams) as well as wetlands. The Rule clarifies these waters’ status after years of uncertainty spawned by SWANCC and Rapanos, as well as the EPA and Corps’ various policies and guidance adopted in the wake of those decisions.
Shortly after taking office, President Trump ordered that the Clean Water Rule be revised or replaced. Since then, in the face of popular opposition and legal challenge, the Trump administration has sought to stymie and now repeal the Clean Water Rule, with little scientific backing, legal analysis or public outreach. The administration has already proposed a new rule that will unambiguously strip protection from isolated wetlands and ephemeral streams (and perhaps other categories of waters as well) despite overwhelming scientific consensus around their importance to the health of the waters of the United States.