Reach of the Clean Water Act remains unclear


In an increasingly environment-focused era, the Clean Water Act was signed into law in 1972 with the intent to preserve water quality in the United States by regulating discharges of pollution into the country’s navigable waters.

Although the intent of the law was for the federal government to regulate “navigable waters,” defined as “waters of the United States,” recent court decisions have raised questions about which bodies of water are within the jurisdiction of the CWA.  In response to the legal uncertainty, the Environmental Protection Agency proposed a rule in 2014 to further clarify which waters are considered waters of the United States.

The EPA’s Waters of the U.S. Rule, otherwise known as WOTUS, was finalized in late May with an implementation date of Aug. 28, 2015.  It was issued jointly with the U.S. Army Corps of Engineers.

The rule immediately came under renewed fire from agriculture and a diverse assortment of other interests.

The day it was published, numerous states and business groups filed complaints against the EPA and the U.S. Corps of Engineers challenging the rule.  These challenges included a motion by 13 states in a North Dakota federal district court to keep the rule from being implemented. That court delayed implementation in those 13 states, but did not include Florida.

In October, however, the Sixth Circuit Court of Appeals in Ohio blocked nationwide implementation of the rule until it could decide whether it had jurisdiction over the case.  Another ruling is expected soon to determine whether WOTUS remains blocked or gets implemented while the legal cases are resolved.

In addition, lawmakers have been mounting an effort to defund the regulation, with no success so far in the face of veto threats from the White House.

Producers and others argue that the rule amounts to a federal intrusion on states’ rights. They say it represents a sweeping expansion of federal power that could subject them to expensive and time-consuming permit processes and fines for many everyday activities that keep their businesses afloat. Thousands of comments objecting to the scope of the rule were filed.

For example, Florida Agriculture Commissioner Adam Putnam said at the time of the rule’s finalization, “Florida is a unique state, and the EPA’s one-size-fits-all power grab to expand federal government’s authority robs Florida’s leaders of the ability to make the best decisions for our distinct water bodies. There is little clarity or relief for Florida in these regulations and the expansion of federal jurisdiction stands to threaten the sound environmental programs we currently have in place today.”

Absent congressional action, the future of the rule will depend on whether it survives ongoing or future legal challenges. It may end up before the U.S. Supreme Court.

The judges issuing stays so far have been very critical of the rule, but federal administrative agencies are given a lot of leeway by courts, so the rule’s fate in court is hard to determine.  If the litigation is still ongoing, the next President may have the chance to decide which streams, ditches, and ponds will be subject to federal standards.

“In the end, it will probably be up to the Supreme Court to decide the future of the rule, and we can only hope it doesn’t take too long or cause too much confusion in the meantime,” said Greg Munson, an environmental lawyer with the Gunster law firm who is following the rule.

Read more about the Waters of the U.S. rule and where it stands at at the links below:

Comments are closed.