• Adison Banks

Comment on the proposed rule redefining “Waters of the United States”

Last week, on February 27th and 28th, the Environmental Protection Agency and US Army Corps of Engineers held a two-day hearing in Kansas City, KS to receive comments on a proposed rule that would redefine "Waters of the United States" under the Clean Water Act. What happens with this rule is important because the definition of “Waters of the United States” determines which waters are protected by the Clean Water Act. Heartland Conservation Alliance provided a comment at the hearing. If you missed the hearing, you still have the opportunity to provide a comment, or multiple comments, until April 15th by going to the following link here, and then entering the portal under the “Open Public Comment Period.”

Photo: The Blue River at Minor Park, Courtesy of Pat Whalen.

What are the “Waters of the United States”?

The Clean Water Act was enacted in 1972. Its purpose was to eliminate the discharge of pollutants into “navigable waters” by 1985 and to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” The term “navigable waters” was defined in the Clean Water Act as “Waters of the United States.” Almost 50 years after it was enacted, we have not eliminated the discharge of pollutants into the Nation’s waters. Instead, we are still arguing over what the Nation’s waters are.

In 2006, the United States Supreme Court, in Rapanos v. U.S., attempted to define “Waters of the United States,” but the Court splintered, producing multiple opinions without a majority signing on to any one opinion. In the Plurality Opinion, Justice Scalia and three other Justices argued that the Clean Water Act applies only to traditionally navigable waters, meaning navigable by boat. In a Dissenting Opinion, Justice Stephens and three other Justices argued that the Clean Water Act is about eliminating pollution, so “Waters of the United States” should be defined by the waters pollutants are capable of navigating. Justice Kennedy Concurred in Judgment with the Plurality, which means he agreed with the outcome the Plurality reached in the case, but he did not agree with the Plurality’s reasoning. Justice Kennedy argued that “Waters of the United States” included both traditionally navigable waters and those waters which have a “significant nexus” to traditionally navigable waters.

In 2015 the EPA and Army Corps of Engineers made a rule that defined “Waters of the United States,” which incorporated the “significant nexus” test into the definition, since a majority of the Supreme Court in Rapanos had held that the Clean Water Act should apply to at least those waters. The term “significant nexus” is generally means that there is a hydrologic connection between a water body in question and a traditionally navigable water. So ephemeral streams and wetlands would be “Waters of the United States” as long as there is a hydrologic connection between them and a traditionally navigable water.

The new proposed rule would replace the rule made in 2015, and it would adopt Justice Scalia’s Opinion in Rapanos. It would exclude streams with ephemeral flow and wetlands that do not have a direct surface connection with a traditionally navigable water. This proposed rule threatens to impact much of the Nation’s drinking water as well as wildlife habitat. We have to ask is this rule consistent with the declared purpose of the Clean Water Act, or are we moving further away from the goal of eliminating the discharge of pollutants and restoring and maintaining integrity of the Nation’s waters?

Let the agencies know what you think of their proposed rule. If you have any questions about the proposed rule or about providing a comment, please contact Adison Banks at (816) 554-9847 or adison@heartlandconservationalliance.org.

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