Frequently Asked Questions
1. What is the Waters of the United States Rule?
The proposed Waters of the United States Rule, or Clean Water Rule was issued by the Obama Administration March 25, 2014 to clarify which waters are protected by the Clean Water Act. The final rule was published in the Federal Register on June 29, 2015. It has faced court challenges since then, which have suspended implementation.
2. What is happening to the Clean Water Rule under President Trump?
On February 28, 2017, President Trump signed an executive order directing the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency to review the Waters of the United States Rule, also known as the Clean Water Rule. The Administration plans to repeal the Clean Water Rule before directing the two agencies to begin a second rule-making process. The Trump Administration has been signaling that it wants the agencies to base their rule-making off of former Justice Antonin Scalia’s opinion, and not Justice Anthony Kennedy’s opinion in the Rapanos’ case. Experts estimate that Scalia’s very narrow interpretation of the scope of the Clean Water Act would leave millions of acres of wetlands and tens of thousands of miles of rivers and streams unprotected under federal law. For more information about the Supreme Court decisions which created a need for this rulemaking in the first place, please see question 9 below.
3. Why was it necessary to release a Clean Water Rule?
In 1972, the Clean Water Act was enacted to protect waters of the United States from pollution and degradation. At the time, rivers were so polluted that that they caught fire. Lake Erie was on the verge, in fact, of being declared “dead” because aquatic life had practically vanished. The Clean Water Act was instrumental in curbing pollution into our nation’s waterways. In the 2000’s, two Supreme Court cases questioned the authority of the Clean Water Act to protect waters that do not continuously flow throughout the year, or that are not always connected to large, navigable waters. These Supreme Court opinions have primarily created confusion over whether many wetlands, small lakes, and streams are protected. The Obama Administration released this rule to help clarify the extent of the Clean Water Act in light of the Court’s decisions. Congress could have clarified the extent of the Clean Water Act. Yet, proposed legislation has always stalled, leading to the Obama Administration’s decision to take action by issuing the Waters of the U.S. rule.
4. What does the Clean Water Rule say?
The Clean Water Rule defines what is meant by “waters of the United States” in the Clean Water Act. This rule also specifically defines what waters are not included in this definition. You can read the full rule here and can find background information about the rule on the Environmental Protection Agency’s website. For the first time, this rule lays out specific agricultural practices that are exempt from Clean Water Act regulation. The EPA and Army Corps worked with the United States Department of Agriculture’s Natural Resources Conservation Service (USDA NRCS) to determine which practices would be exempt. Due to legal challenges, the rule has currently been stayed by the 6th U.S. Circuit Court of Appeals.
5. What does the Coalition think about the Clean Water Rule?
We strongly support the 2015 Clean Water Rule because it restores protections to many of the waters originally protected by the Clean Water Act. The bottom line is that, at a time when we’re seeing federal Great Lakes restoration investments deliver results in communities across the region, this rule will help protect those gains by ensuring that as we take one step forward we aren’t also taking two steps back. Nation-wide, the 2015 Clean Water Rule would provide drinking water supply protection for 117 million Americans.
6. Why is the Clean Water Rule important?
Under the Clean Water Act, the U.S. EPA and U.S. Army Corps of Engineers protect our nation’s waters from pollution, keeping them safe to play in, to drink from, and for wildlife to enjoy. The act has also worked to balance the interests of farmers and industry that need to use or alter waterways with the needs of people and wildlife to have clean water. In order for the EPA and the Army Corps to issue permits for activities that impact our waterways, a common understanding must be shared over which waterways are protected by the Clean Water Act. Two Supreme Court decisions in 2001 and 2006 created confusion over what waters require permitting under the Clean Water Act and what waters do not. This lack of clarity has created confusion for businesses while also endangering the health of many waterways. The new rule works to clarify the extent of the Clean Water Act, benefitting people and wildlife alike.
The Clean Water Rule works to restore protections that had been in place for the first 30 years of the Clean Water Act, thereby addressing some of the confusion over the Clean Water Act’s jurisdiction that was created by the U.S. Supreme Court. This rule stands to more clearly protect waters that are extremely important to the health of the Great Lakes. The Great Lakes Regional Collaboration Strategy to Restore and Protect the Great Lakes, a 2005 plan endorsed by the region’s environmental, business, industry, and tribal leaders, calls for the long-term restoration of one million acres of wetlands. So far, according to the U.S. EPA, approximately 100,000 acres of wetland, coastal, upland and island habitat have been protected, restored, or enhanced through federal funding from the Great Lakes Restoration Initiative. A successful rulemaking will help protect the investment we’ve made in Great Lakes wetlands, streams, and the lakes themselves.
About 50 percent of the streams in Ohio, Michigan, Illinois, Wisconsin, and Minnesota do not flow all year, putting these important streams and adjacent wetlands in the Great Lakes region at risk of increased pollution and destruction because of confusion over which waters are protected by the Clean Water Act. An agency rule is desperately needed to clarify the definition of the “Waters of the United States” in the wake of the Supreme Court decisions. See how the lack of clarification over the Clean Water Act’s jurisdiction has impacted Minnesota, Wisconsin, Illinois, Indiana, Michigan, Ohio, Pennsylvania, and New York.
8. What waters are most at risk without this rule?
Small, intermittently flowing streams, wetlands, and other waters located beyond river floodplains are primarily at risk for being excluded from current Clean Water Act protections. Many people depend upon these small streams for some or all of their drinking water from these streams. In the Great Lakes region alone, tens of millions of people depend on drinking water either directly from small streams, or near them. Wetlands are important as well, providing critical habitat for fish, migratory birds, and endangered species while also improving water quality and protecting nearby communities from flooding. Over 75 percent of the migratory birds in the United States rely on wetland habitat to survive, so wetland health benefits bird watchers and hunters as well. Recreational and commercial fishermen benefit from robust and extensive wetlands because many fish rely on estuaries and wetlands at some point in their life cycle. In the Great Lakes region, the recreational fishing industry generated over $13 billion in economic activity in 2011.
For more than a decade, an estimated 90 percent of the wetlands remaining in the Great Lakes have been at increased risk. This uncertainty and lack of protection has taken its toll. While the Great Lakes’ coastal wetlands have gained some ground in recent years in large part due to investments through the Great Lakes Restoration Initiative, overall, wetlands in the Great Lakes states and nationwide are losing ground. For the first time since the 1980s, annual wetland losses nationally are on the increase: the rate of wetland loss in 2004-2009 increased by 140 percent over 1998-2004.
9. These Supreme Court decisions seem to have a lot to do with the Clean Water Rule; what specifically did the Court say?
Supreme Court decisions in 2001 (Solid Waste Agency of Northern Cook County, or SWANCC) and 2006 (Rapanos) created uncertainty about what types of waters the Clean Water Act protects, especially with respect to wetlands that are not adjacent to streams and rivers, as well as headwater streams and streams that lack permanent flow. At the heart of both cases were questions regarding which waters are “navigable waters,” defined as “waters of the United States,” over which the Clean Water Act has jurisdiction.
At issue in the 2001 SWANCC case was a pond, declared by the U.S. Army Corps of Engineers to fall under the jurisdiction of the Clean Water Act because migratory birds used the water. This protection was based on a 1986 clarification by the U.S. Army Corps of Engineers that “waters of the United States” included intrastate waters that were, among other things, being used as habitat by migratory birds. This 1986 clarification by the Army Corps stood until the 2001 SWANCC ruling, which determined that for waters to be protected under the Clean Water Act as “navigable waters,” jurisdiction must be based on more than just their use by migratory birds.
The importance that “navigable waters” took on after the SWANCC case led to the 2006 Rapanos case, which addressed the question of whether wetlands adjacent to streams and rivers are “navigable waters,” or “waters of the United States,” under the act. The Rapanos decision ended up being split 4-1-4, leaving no majority opinion on this question. Five of the justices agreed only that to establish Clean Water Act jurisdiction over the adjacent waters at issue in Rapanos, there needed to be more scientific evidence of their physical, chemical, and biological connections to downstream waters. But the court provided no majority opinion clearly explaining what was required to establish jurisdiction in the wake of this decision. Former Justice Antonin Scalia’s opinion suggested federal protection should be extended only to “relatively permanent” waters and wetlands with a continuous surface connection to larger rivers and streams. Justice Anthony Kennedy wrote the stand-alone opinion, which the Obama Administration used in crafting the 2015 Clean Water Rule. Justice Kennedy’s opinion stated that waters must have a “significant nexus” to navigable rivers and waters, which could include biological or chemical connections as well as surface ones.
Several justices did agree, however, that the Army Corps and the EPA rulemaking revising the definition of “Waters of the United States” was long overdue.