We Don’t Have Much Time

We knew it was coming, and now it’s here. The public comment period is open to determine the fate of the Clean Water Rule, also known as the Waters of the US Rule. But the window for getting your comments in is a narrow one—more details on that below.

Those of you who read Stormwater magazine might recall an editorial back in June in which I mentioned that EPA and the US Army Corps of Engineers under the new administration are trying to rescind the rule. The process is taking place in two steps: The first will change the Code of Federal Regulations so that it reflects the definition of “waters of the US” that was in place before the Clean Water Rule was issued. The second will put in place an even narrower definition that, the administration says, “is in-line with Supreme Court Justice Antonin Scalia’s opinion in the 2006 Rapanos v. United States case. Scalia’s definition explains that federal oversight should extend to ‘relatively permanent’ waters and wetlands with ‘a continuous surface connection’ to large rivers and streams.” Essentially, this would roll back protections on ephemeral streams and wetlands within floodplains that were originally covered by the Clean Water Act.

The public comment period for the first step opened last week. The deadline to submit a comment is August 28, 2017. Unlike some rules that have a longer window—often 90 or, in some cases, as much as 180 days—this one has just a 30-day public comment period. (A group of senators last month requested that EPA and the Corps of Engineers extend the comment period, but as yet the deadline has not moved.)

You can submit your comments on this website. When you do, refer to Docket ID No. EPA-HQ-OW-2017-0203.

A bit of background: In 2014, EPA and the Army Corps of Engineers jointly released the Clean Water Rule, designed to clarify what is covered under the protection of the Clean Water Act. The two agencies emphasized that they were not trying to broaden the original scope of the CWA, only to clarify it. This was necessary, they said, because a number of Supreme Court rulings—including Rapanos v. US—had confused and weakened the definition of what the CWA actually protects. Without the clarification of Clean Water Rule, EPA and the Corps said at the time, the effects of the Supreme Court’s decisions left nearly 60% of the nation’s streams and wetlands—and the drinking water sources for about a third of the US population—essentially unprotected.

Once it was proposed, the rule faced challenges in court—several states, including Oklahoma, of which EPA administrator Scott Pruitt was then attorney general, sued to block it—and was stayed by the Sixth Circuit Court of Appeals in 2015. A presidential executive order in February of this year called for a review of the rule with an eye toward balancing pollution prevention with promoting economic growth. The move was applauded by the agricultural and development industries, which had strongly opposed the Clean Water Rule.  

What happens next will affect the work most of us do and is likely to influence policy and court decisions for years to come. Your position within the stormwater arena gives you a good perspective on this issue and uniquely qualifies you to offer an informed opinion. I urge you to do so before the deadline—and during the next step of the process as well.

Seeking Moderators for StormCon Sessions

For those of you planning on attending the StormCon conference in Bellevue, WA, in August, we’re still looking for moderators for several of the conference sessions. You can find the complete program and other details of the conference at www.StormCon.com. If you’re interested in being a moderator, please contact me ([email protected]) or Brigette Burich ([email protected]) for details.