Trump administration redefines jurisdiction of Clean Water Act

The Trump administration completed its rule Jan. 23 to narrow the regulatory jurisdiction of the Clean Water Act, a step welcomed by spokesmen for the oil and gas industry as a clarification and a reduction in regulatory burdens.

Companies drilling for oil or gas or building pipelines must deal with the “dredge and fill” permitting regime of the US Army Corps of Engineers if their work impinges on streams or adjacent wetlands. The companies also must deal with the Environmental Protection Agency’s water pollution standards.

There have been decades of arguments over what locations are covered. The 1972 Clean Water Act never defined its own jurisdiction, referring vaguely to the “waters of the United States” and “navigable waters,” leaving much to regulators and court decisions.

The Obama administration in 2015 adopted a more expansive determination of Clean Water Act jurisdiction that was tied up in courts. Now the Trump administration has issued its replacement, which will take effect 60 days after publication in the Federal Register.

The new final rule puts much emphasis on the “navigable waters” phrase in the law as a guide to the intent of the lawmakers, and it repeatedly cites an opinion written by Justice Antonin Scalia for the 2006 Supreme Court decision in Rapanos v. United States. The justices were splintered in that case, issuing five opinions and consequently resolving nothing while giving the Corps of Engineers a legal setback.

Lakes, ponds, wetlands, ditches

The new rule will apply federal regulation to territorial seas and traditional navigable waters, continuous (perennial) and intermittent tributaries of those waters, adjacent wetlands, lakes or water impoundments connected by surface flows to jurisdictional waters, and ditches that have been dug in wetlands or waterways.

The new rule will not apply federal controls to isolated lakes, ponds and wetlands lacking surface water connections to navigable waters, nor will they be applied to ditches outside wetlands or waterways. Federal regulations also will not apply to “ephemeral” streams, which flow only in the immediate aftermath of rain. Those will be left to states and local governments.

Frank Macchiarola, senior vice president of policy, economics and regulatory affairs at the American Petroleum Institute, issued a statement welcoming the new rule.

“Clear, easily implemented and legally sound permitting regulations help regulators, landowners and property developers from all industries make sound resource allocation decisions that protect the environment while facilitating economic growth,” Macchiarola said.

Andrew Black, president and chief executive of the Association of Oil Pipe Lines, had been awaiting the final rule in hope of seeing it follow—as it did—the basic elements contained in the December 2018 proposed version of the rule.

Modern pipeline construction for oil and gas transmission minimizes the risks of harm to streams, Black said in explaining why he hoped for a lighter regulatory hand. Companies will drill horizontally beneath a stream to avoid disturbing the stream, leaving less danger to a stream’s ecosystem.

The Obama administration had concluded it could regulate isolated ponds and wetlands if a federal agency determined, on a case-by-case basis, that there was a sufficient connection in some fashion, such as a subsurface groundwater seepage or an ecosystem connection of some kind, to jurisdictional waters. It also assumed it could regulate ephemeral streams. The assumptions mostly predated the Obama administration but had not been systematically codified.

The Trump administration rule “will strip Clean Water Act Protections for more than half the nation’s wetlands and millions of miles of streams,” the Sierra Club in a Jan. 23 statement.

Praises for the rule came from some influential Republicans, including Sen. Lisa Murkowski (R-Alaska), who chairs the Senate Energy and Natural Resources Committee, and Sen. Jim Inhofe (R-Okla.), who chairs the Senate Environment and Public Works Committee.

Explanatory information and a link to the final rule in its pre-publication form can be found at https://www.epa.gov/nwpr/navigable-waters-protection-rule-step-two-revise.