By David Pendered
The nation is at a “pivotal moment” in environmental law and Monday, April 15 is the deadline for public comment to a proposed ruling by the Trump administration that would reduce the amount of waters and wetlands protected by the Clean Water Act of 1972.
The American Bar Association provided a fairly blunt assessment of the situation in a March 27 report:
- “This is a pivotal moment in the history of one of the nation’s most significant environmental laws.”
The deadline for comment on the proposed revision of the Waters of the United States rule is Monday at 11:59 p.m. Comments can be submitted via this page on regulations.gov.
As of Sunday evening, 96,906 public comments had been submitted to the federal docket, according to the docket summary. Some are piercing:
- “My family has been farming in McHenry County, Illinois since the 1840s. My farm land is my largest asset and primary source of income. This is why I am fighting for clean water and clear rules. Modern agriculture is environmentally sustainable….
- “I should not have to hire teams of engineers, consultants and lawyers just to know if I can farm my biggest asset, my land. I support common-sense regulations which aim to protect and improve water quality on our nations farms. I need clean water and clear rules.”
- “My father and grandfather grew up on the Savannah river. I fished it. I swam in it. I saw the first of so many things there in that river.
- “Reducing protection of these natural waterways is ludicrous. These water ways kept my family and many other families alive, fed, paid, and more importantly they were here before we were. Before the natives were here. Before the animals we know.
- “Please re-think these decisions as i feel they are detrimental to the overall health of our region. As well as being the start to us completely destroying our environment.”
The CWA has been a subject of interpretation from almost its inception.
The Obama administration in 2015 issued a rule that expanded the definition of waters covered by the Waters of the United States rule. A portion of the 2015 ruling that triggered some widely reported controversy was the designation of ditches that carry water as federally protected waters.
The Trump administration issued a proposed rule on Feb. 14 that reduces the amount of wetlands and streams that are federally protected. It sought to clarify which water-carrying ditches would be subject to federal jurisdiction. But the ruling still isn’t clear, according to the National Association of Counties.
The deadline of Monday applies to public comment that will be accepted regarding the Feb. 14 proposal.
Multiple interests have a stake in the ruling. Farming, cattle ranching and commercial fishing organizations are in the group.
One that provided a succinct description of the proposed rule is the National Organization of Counties, which in an April 9 report encouraged members to provide comment because of the wide array of public infrastructure the WOTUS rule affects including:
- “[R]oads and roadside ditches, drainage and irrigation conveyances, flood control channels, bridge construction and rehabilitation projects and stormwater and wastewater facilities.”
Here’s one thorny issue NACO analysts have identified:
- “[S]ome roadside and drainage ditches built decades ago in natural stream systems would be jurisdictional if the ditch has year-round or intermittent (seasonal) flow. However, ditches that are only wet during rainfall events would not be jurisdictional under the proposed rule.”