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The Insider

Trump Administration Vows Strong CWA Enforcement While Revising Rule

The Trump administration is placing a strong emphasis on protecting clean water, with the Justice Department's (DOJ) acting enforcement chief vowing to prosecute civil and criminal violations of the Clean Water Act (CWA) -- even as the administration is struggling with what the law's scope should be in a pending CWA jurisdiction rulemaking.

Environmentalists have questioned the Trump administration's commitment to strong CWA enforcement, arguing in one recent case that a proposed settlement for half of the penalties DOJ sought in litigation was so lenient as to be a failure to enforce the water law. And the administration's critics have warned that EPA could reduce enforcement of the CWA and other laws given its broad deregulatory agenda that favors industry.

But in a speech this week to municipal wastewater utilities, Acting Assistant Attorney General Jeffrey H. Wood highlighted a number of significant settlements DOJ has made in civil and criminal CWA cases, saying law enforcement remains the department's “first and foremost” job. But he added that federal CWA “enforcement decisions need to be made in a rational way,” which “includes looking at the actual environmental benefits that may be gained”:

DOJ Official Vows Strong CWA Enforcement Under Trump Administration
The Justice Department's (DOJ) acting environment chief is vowing the Trump administration will pursue a “strong program” of civil and criminal Clean Water Act (CWA) enforcement while promoting “a compliance assistance mindset” as many states and localities have done, downplaying concerns about possible enforcement cuts.

The commitment to strong CWA enforcement comes as EPA is weighing the thousands of comments it has received on its proposal to withdraw the Obama-era jurisdiction rule, as it begins to think about what the replacement rule should look like, and as it scrambles to get ahead of the possibility that a pending Supreme Court ruling could put the Obama-era rule -- currently stayed by an appellate ruling -- back into effect, at least temporarily.

To address the possibility of the high court dissolving the current stay of the 2015 rule, or the possibility that the proposed repeal of the rule is itself suspended or overturned by a federal court, EPA and the Army Corps of Engineers are proposing to delay the Obama jurisdiction rule's effective date into 2019 or beyond:

Fearing High Court Ruling, EPA Proposes Two-Year Delay For CWA Rule
EPA and the Army Corps of Engineers are proposing to retroactively delay the 2015 Clean Water Act (CWA) jurisdiction rule's effective date into 2019 or beyond, in order to avoid having to apply the Obama-era policy they are seeking to repeal, if a Supreme Court ruling dissolves a nationwide stay blocking the rule's implementation.

EPA and the Corps have been holding a series of public listening sessions to help the agencies craft a replacement jurisdiction rule. But while many industry sectors viewed the Obama-era rule as regulatory overreach, they continue to struggle with what they want a replacement rule to look like.

For example, a public power sector group is working on a plan to try and reconcile the two leading but competing Supreme Court tests for jurisdiction, while mining companies and other industries are debating whether to pitch a unified recommendation for the agencies:

Science, Policy Questions Pose Major Hurdles For CWA Jurisdiction Rule
Scientific and policy questions are posing major lingering hurdles for state regulators, utilities, industry groups and others as they aim to craft recommendations for how EPA should develop a Clean Water Act (CWA) jurisdiction rule to replace the Obama-era jurisdiction regulation that critics say failed to resolve many of those questions.

During the EPA-Corps listening sessions, one option floated to help reconcile the differing standards outlined by Scalia and Kennedy was crafting a software tool that could allow property owners to gauge the potential that their lands contain protected wetlands or streams, and thus are subject to CWA permit mandates for discharges or fills.

Consultant Floats Tool For Reconciling Competing CWA Jurisdiction Tests
An environmental consultant is calling on EPA to craft a new software tool that could “bridge the gap” between the Obama-era study on waters' connectivity that helped drive the 2015 Clean Water Act (CWA) jurisdiction rule and critics of the rule pushing for a narrower CWA test using “objective” criteria applicable by laypeople.

Questions over the Trump administration's ability to make significant changes to CWA regulation go beyond the threshold question of what waterbodies should be regulated and into the application of water quality standards developed under the law.

One example is a pending case before EPA's Environmental Appeals Board that could, if it is eventually appealed to federal circuit court, set a new precedent defining the Trump EPA's freedom to reverse Obama-era nutrient limits that industry and municipalities attacked as excessive.

EAB Weighs Limits On EPA Power To Soften Obama-Era Nutrient Permits
EPA's Environmental Appeals Board (EAB) is weighing a new case over the agency's bid to soften nutrient limits in a wastewater treatment plant's Clean Water Act (CWA) discharge permit, potentially testing the limits of the Trump administration's ability to loosen permits crafted by its predecessors despite the law's “anti-backsliding” provisions.