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🗳️ "Inside the Waters of the U.S."


Photo by Osman Rana / Unsplash

Table of Contents

Host: Travis Loop
Guests: Ken Kopocis | Former Deputy Assistant Administrator | Office of Water, EPA &
Dave Ross | Former Assistant Administrator | Office of Water, EPA
Category: 🗳️ Policy

Podcast’s Essential Bites:

[3:30] KK: “Fundamentally, the Clean Water Act is the federal law that protects our surface waters from pollution or destruction. And by surface waters, these are lakes, rivers, streams, wetlands, and near shore ocean waters. And the scope of the Clean Water Act, I think is summed up in its initial sentence in “the objective is to restore and maintain the chemical, physical and biological integrity of the nation's waters”. So it's extremely broad in […] what Congress intended it to do. And the way it works is complicated, yet simple conceptually. It prohibits the discharge of a pollutant from a point source without a permit or otherwise in compliance with the law. Now, the concepts of discharge are broadly defined in the Act, a pollutant is broadly defined in the Act and what constitutes a point source are broadly defined in the Act and take up reams of paper in the Code of Federal Regulations. […] I think it's also important to understand that EPA has the general oversight for implementation of the Act. But the Corps of Engineers also has a role in the permit of dredge or fill material into Waters the United States primarily they exercise it in wetlands, and also that the day to day implementation of the Clean Water Act is carried out at the state level […] with EPA assistance and with EPA having an oversight role.”

[5:28] DR: “I think there's a bit of a misconception when people talk about Waters of the United States and being covered under the Act. The thing to remember is, the Act […] defines navigable waters as Waters of the United States. […] The overall objective of the Act is to restore the nation's waters, but underneath the Act, there are regulatory programs and non regulatory programs. […] I think it's helpful for people to remember that when you're talking [about] navigable waters, when you're talking [about] Waters of the United States, you're talking about the regulatory programs. […] So the regulatory framework versus the non regulatory framework of the Clean Water Act, […] [which] does a lot more than just cover Waters of the United States.”

[7:01] DR: “EPA is the final authority over what is or is not a Waters of the United States, what is the jurisdiction of the Clean Water Act. This was actually an open question in the 1970s, because the Corps has given such an important role under the program. […] And so practically speaking, the Corps making determinations over jurisdiction on a daily basis. […] But if there is a dispute, and who gets the side an actual jurisdictional call, ultimately, and there's an Attorney General's opinion in the 1970s […] ultimately it’s the EPA’s decision as to what is or what is not a Waters of the United States subject to Clean Water Act jurisdiction.”

[19:27] DR: “The Obama administration did roll up the sleeves and do the hard work of doing the rulemaking. […] And so there's a lot of litigation, particularly with the states. About 31 states sued the Obama rule and had some success early on, which […] led to a patchwork of regulation on the landscape where you had different regulatory regimes based on which state that you were in. […] And so the Trump administration came in an executive order […] to revisit the 2015 rule. And so I was charged with doing that. […] I think the major changes jurisdictionally were obviously in the ephemeral versus the intermittent cut off on which flowing waters are regulated. The Trump administration drew a pretty, pretty bright line between all inner minutes are in, but the ephemerals are out. And then I think there was replacing significant Nexus with additional tests for how do you regulate wetlands. […] And again, to no surprise, the Trump rule was immediately litigated as well. And that leads us to a new administration and a new time.”

[23:46] KK: “The Biden administration has indicated that it wants to revisit the subject again, and is looking to revise the definition of what is Water of the United States under the Clean Water Act. […] It was no secret that that the incoming administration was likely to take a more expansive view of what is covered that the prior administration did that […]. But they also made it clear that their intent was not to simply do a resurrection of the 2015 rule. […] So what the current administration wants to do is they're currently engaged in a process of public outreach. And then they intend to take a new fresh look at what should be included in the Clean Water Act.”

[28:16] DR: “Why is this so difficult [to define WOTUS]? One, because Congress failed us back in 1972, when it so helpfully defined navigable waters as Waters of the United States. And so in the legal terms, where you have sort of ambiguous statutory constructs,  it's up to the regulatory agency with expertise to sort of fill that knowledge gap. And the agencies, both the Corps and EPA, have been trying to do that for 50 years. And resulting in a tennis match. Some might say, it's even getting closer to a ping pong match with the balls accelerating. […] I think we all agree that that's just not great government. […] The other is to do a nationwide rule with such different hydrologic regimes in the landscape, is really, really difficult. […] To try as a nation to regulate with one set of rules, where water means different things, whether or not too much too little, in different parts of the country is really challenging and then feathered. On top of that you've got state rights, state authority, both regulatory and water quality, but also water rights, […] who gets to say what you get to do with the water. […] It's just a recipe for impossible regulation.”

[48:51] KK: “People see regulation under the federal Clean Water Act as a threat […] whether it's their economic way of life, or their social way of life, or just how they see their role in the environment. And when I say a threat, is it can be a threat in both directions. Overregulation can be viewed as a threat to economic interests, in particular, and underregulation can also be a threat to economic interests and also to aesthetics to people that are concerned about what kind of a place do we leave for our children and grandchildren and those kinds of issues. And so, when you have people that think of a regulatory program, as a threat, potentially from both directions, then it becomes a very serious issue for those interests. […] There's so much diversity of interest, and who has an interest in protecting water and who has an interest in being able to develop and maintain an economic use of water that it creates a world where trying to get the two sides in the same room and come up with the same conclusion is just extremely difficult.”

Rating: 💧💧

🎙️ Full Episode: Apple | Spotify
🕰️ 1 hr 13 min | 🗓️ 09/07/2021
✅ Time saved: 1 hr 11 min