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EPA to Publish Proposed Guidelines Clarifying Waters of the United States Rule

The Environmental Protection Agency is about to publish its proposed guidelines to clarify the Waters of the United States rule so that it mirrors the language used before 2015, which is when the Obama administration broadened the scope of the law.

The EPA, which is working in concert with the Army Corps of Engineers, is seeking to limit the authority of the federal government when it comes to regulating waterways under the Clean Water Act. The Obama administration had said that the federal government could oversee smaller bodies of water that fed into larger navigable waterways. Doing so would protect drinking water for 117 million Americans, it said. It also said that wildlife and outdoorsmen also depended on the broader view.

But President Trump signed an executive order in February that had asked EPA Administrator Scott Pruitt to review that 2015 ruling, which has been held up in the court system and which has not been enforced. His administration’s view is that the intent of the original Clean Water Act of 1972 had been to protect navigable waters that led to interstate commerce — not smaller bodies of water.

That’s a view endorsed by the agricultural community as well as both larger and smaller businesses that say Obama’s rule would have been burdensome and restricted commerce had it been enforced. Meantime, EPA Administrator Pruitt said the goal is to keep waters free from pollution while promoting economic growth.

“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” said Pruitt, in a statement. “This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

The Clean Water Act passed in 1972. It was amended in 1987.

Supporters of EPA’s move to curtail the federal government’s powers in this case include the US Chamber of Commerce and the American Farm Bureau Federation.

“We know the importance of clean water, and farmers and ranchers work hard to protect our natural resources every day,” Zippy Duvall, president, American Farm Bureau Federation, said.

“But this rule was never really about clean water,” he added. “It was a federal land grab designed to put a straightjacket on farming and private businesses across this nation. That’s why our federal courts blocked it from going into effect for the past two years. Today’s announcement shows EPA Administrator Pruitt recognizes the WOTUS rule for what it is—an illegal and dangerous mistake that needs to be corrected.”

“The final WOTUS rule issued by the last administration was unworkable, a fact acknowledged by courts around the country, and amounted to a massive grab of regulatory authority by an EPA that was overreaching,” William Kovacs, U.S. Chamber senior vice president of Environment, Technology, & Regulatory Affairs, added. 

Environmentalists, however, lampooned the decision, saying that the nation’s waterways are all interconnected and no body of water should be considered insignificant:

“The Trump Administration’s attacks on safe clean drinking water standards will allow more pollution of the Great Lakes and the Mississippi River watersheds harming public health and fish and wildlife habitat,” said Howard Learner, Executive Director of the Environmental Law & Policy Center.

“Allowing coal plants to keep discharging toxic pollutants collected into local waterways is dangerous and short-sighted,” Learner added. “The Ohio River and White River provide drinking water for millions of people. State health departments along these waterways have advisories warning people about eating fish caught in these rivers. Rather than rolling water protections backwards, we should move forward to protect our vital resources.”

“This proposal strikes directly at public health,” added Rhea Suh, president of the Natural Resources Defense Council. “It would strip out needed protections for the streams that feed drinking water sources for one in every three Americans.  Clean water is too important for that.  We’ll stand up to this reckless attack on our waters and health.

“The Clean Water Rule provides the clarity we need to protect clean water,” Suh continued. “Its repeal would make it easier for irresponsible developers and others to contaminate our waters and send the pollution downstream.”

After the proposed rule is published, it will go out for comment. After reviewing the comments, the EPA would publish a final rule, which will assuredly get litigated.

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