As definitions relating to the Federal Clean Water Act continue to evolve, the U. S. Court for the Southern District of Texas ruled in May that EPA’s 2015 rule expanding federal jurisdiction over very small or isolated waters did not follow due process, thereby striking down the proposed rule.
This ruling is a victory for agriculture and other industry organizations that had raised concerns about the scope of the proposed rule.
Especially concerning was the incorporation of an EPA report, “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of Scientific Evidence,” often referred to as “the Connectivity Report.” The report was published without an opportunity for public input and essentially laid the foundation for federal regulation of virtually all water, anywhere, undermining the authority of states to manage water resources.
The ruling is another point on the Clean Water Act court timeline. Some rulings have been viewed as generally encouraging increased regulation while others curtail the federal agency’s power and reach. The 2015 rule has been temporarily blocked in some states while under litigation. The rule is technically in effect here in Minnesota but has had little effect as our state regulatory program is already among the most advanced in the country.
This back-and-forth within the courts is frustrating but not surprising considering the complexity of water science. Congress has had little success in clarifying the Clean Water Act, unable to balance competing interests. The CWA is thus a wellspring of opportunity for legal wrangling, often over definitions of such difficult to interpret word like “reasonable” or “unreasonable,” which together appear 68 times in the CWA. The word “significant” appears 30 times.
The current administration has proposed issuing a new regulation defining Waters of the U. S. while other legal challenges to the 2015 rule are still pending in federal district courts across the country.
Here’s to hoping for significant progress toward a reasonable rule.
Warren Formo is executive director of the Minnesota Agricultural Water Resource Center.