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Clean Water Rule Revived in PA, Protecting Our Headwater Streams and Wetlands

Last week, a federal district court in South Carolina threw out the Trump Administration’s unlawful attempt to delay the effective date of the Clean Water Rule – which was enacted in 2015 – resulting in its reestablishment in Pennsylvania and 25 other states.

The 2015 Clean Water Rule is a scientifically-supported rule, in line with the purpose of the federal Clean Water Act, that protects sensitive and critical headwaters and wetlands, which in turn protects the water quality for thousands of steam miles in the Commonwealth and the drinking water supplies used by millions of Pennsylvanians. PennFuture supports the Clean Water Rule and its clear protections of our waters, which provide further benefits to Pennsylvania’s outdoor recreational economy as well as communities and small businesses.  

The Clean Water Rule was promulgated on August 28, 2015 to clarify the definition of “waters of the United States” under the federal Clean Water Act. It notably extended clean water protections for small, intermittent and ephemeral streams and wetlands that had a “significant nexus” to traditionally navigable waters.  The Clean Water Rule was based on the definition of “waters of the United States” as described by Supreme Court Justice Anthony Kennedy’s concurring opinion in Rapanos v. United States, 547 U.S. 715 (2006), which protected any waters that had a “significant nexus” to navigable streams.  

Upon taking office in 2017, President Trump took aim at the Clean Water Rule and directed the U.S. Environmental Protection Agency and Army Corps of Engineers to rescind the Rule and replace it with a new, more limiting definition consistent with the late-Justice Anthony Scalia’s majority “continuing surface water connection” opinion in Rapanos.  

In July 2017, the Trump Administration proposed to repeal the 2015 Clean Water Rule. The agencies received over 685,000 public comments on the proposed repeal, with the majority of the comments (over 500,000) opposing the repeal of the Clean Water Rule. (Read PennFuture’s comments here.) This repeal rule has not been finalized, and no replacement rule has yet been proposed.

Apparently concerned that its proposed repeal would not withstand judicial scrutiny, the Trump Administration in November 2017 concocted a proposed rule that would add a new “applicability date” to the Clean Water Rule in an attempt to essentially override the August 28, 2015 effective date of the Rule. Over 4,500 public comments were submitted (read PennFuture’s comments here), and on January 31, 2018, the Trump Administration finalized the “Delay Rule” such that the 2015 Clean Water Rule would not be effective until February 6, 2020.  

Numerous lawsuits challenging the Delay Rule were filed across the country. One of these lawsuits, filed in the federal District Court of South Carolina, argued that the Trump Administration failed to follow the procedural rules set forth in the federal Administrative Procedures Act (APA) in promulgating the Delay Rule.  On August 16, 2018, the District Court agreed, and imposed a nationwide injunction on the Delay Rule.

Because of this ruling, the Clean Water Rule has been reinstated in the following 26 states, pending finalization of the proposed repeal rule: California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, New Hampshire, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Tennessee, Texas, Vermont, Virginia and Washington. (For the remaining 24 states, two courts had previously enjoined the Clean Water Rule from taking effect, and thus the South Carolina injunction on the Delay Rule does not impact the status of the Clean Water Rule in those states.)

PennFuture has long-supported the Clean Water Rule and its protection of the Commonwealth’s critical headwater streams and wetlands. We will continue to vocalize our support for the Clean Water Rule, and will keep you informed of any updates in this ongoing battle.

9/12/18 UPDATE: Yesterday, a federal court in Texas blocked the implementation of the Clean Water Rule in three southern states (Texas, Mississippi, and Louisiana), but stopped short on issuing a nationwide injunction on the Clean Water Rule.  Consequently, the Clean Water Rule is now in effect in 23 states, including Pennsylvania.

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