CPR Scholars to EPA, Army Corps: Scrapping the Clean Water Rule is Unlawful, Unwise

by Dave Owen

September 26, 2017

On September 25, a group of Member Scholars from the Center for Progressive Reform (CPR) submitted comments on the Trump administration's proposed rollback of the "waters of the United States" rule (technically, the rollback rule has been issued by EPA and the U.S. Army Corps of Engineers, but its support within those agencies comes only from the Trump administration's political appointees). The proposed rule addresses the scope of federal jurisdiction under the Clean Water Act – which means, in non-legal terms, that it decides which waters get protected by federal law.  

Two years ago, EPA and the Army Corps released the "Clean Water Rule," which clarified and very slightly increased the scope of these protections. The current proposal would throw the Clean Water Rule onto the scrap heap. The eventual goal, as the administration has made perfectly clear, is to reduce the reach of the Clean Water Act, particularly with respect to the smaller waterways that feed into our rivers, lakes, and oceans. 

This, our comments explain, is both unlawful and unwise. It is unlawful because the current proposal makes a mockery of the basic requirements of administrative law. At a basic level, administrative law is designed to ensure that agency decisions are subject to public vetting, clearly and sensibly explained, and consistent with governing statutes. The Trump administration's current proposal meets none of those requirements. Instead, its authors have specifically stated that they are uninterested in comments on the rule they actually would put in place. Their explanations for their proposal make little sense. And they have made no effort to reconcile their proposal with the science of water quality protection or with the Clean Water Act's fundamental goals of ensuring that our nation's waters are clean.  

The proposal is unwise because, while the Trump administration may not realize this, clean water matters. And we cannot have clean water without protecting tributary waterways. In preparing the 2015 rule that the administration wants to scrap, EPA reviewed well over 1,000 scientific studies, which collectively explained the many ways in which the Clean Water Rule's protections would help sustain water supplies, protect drinking water quality, support recreation, sustain habitat, and reduce flooding risks. To the Trump administration, those benefits may not count; the new proposal simply ignores them. But in the daily lives of millions of Americans, they are crucially important.

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Dave Owen is a Professor of Law at the University of California, Hastings, College of the Law.

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