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Blankenau Wilmoth Jarecke llp provides sophisticated solutions to complex legal matters across the country, within a Midwest rate structure. Our practice is devoted to Water, Natural Resources, Energy, Agribusiness and Environmental Law.

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Changes to the EPA and the Clean Water Act

Following the inauguration of President Trump, a flurry of orders have made their way across the oval office desk.  Thus far Trump’s executive actions have ranged from imposing a hiring freeze on federal employees, moving to repeal the Affordable Care Act, and effecting a 90-day immigrant travel ban. In addition to these undertakings, on January 24, President Trump signed an executive order relating to the Environmental Protection Agency (EPA), leaving many wondering what implications these orders will have for both the agency itself and the agency’s regulations, particularity the Clean Water Act (CWA).

The EPA and The CWA:

As of January 23, officials at the EPA have been instructed by the Trump administration to freeze their grants and contracts. Every year the EPA awards upwards of $4 billion in funding, but the implementation of this temporary suspension has left that funding on hold. These freezes came as little surprise to those familiar with Trump’s criticisms of the EPA. President Trump is also requiring EPA studies and data be reviewed by political appointees before being released to the public. The result of these additional procedural hurdles may be a congestion of EPA activity and may ultimately lead to a decrease in the agency’s productivity and overall functionality.

In regards to the CWA, the Trump Administration has made it clear that it intends to stifle the Obama Administration’s effort to clarify the vagueness of the Act. Trump made no qualms regarding his sentiments towards the Act throughout his time on the campaign trail prior to the election. He has reportedly labeled the Act has ‘extreme’ and ‘unconstitutional’ and vowed to eliminate it completely. Trump’s newly appointed EPA director Scott Pruitt, the former Oklahoma Attorney General, has also described the rule as being ‘unlawful’ and a ‘brazen effort to stifle private property rights.’ Pruitt was confirmed as the EPA’s new leader on February 17.

The CWA is no stranger to controversy and debate. The Act is defined as covering Waters of the United States, or WOTUS. However, the scope of this vague standard is unclear and has caused much confusion. In June 2015, the EPA and U.S. Army Corps of Engineers published a final rule defining WOTUS. However, this rule has continued to elicit significant criticism, specifically regarding the expansion of the federal government’s regulatory reach over bodies of water not originally protected by the CWA.

On January 13, the U.S. Supreme Court agreed to address federal court jurisdictional reach over challenges to the current WOTUS rule. Numerous federal appeals court decisions have upheld the broad authority of the CWA, which in essence provides expansive federal jurisdiction over wetlands and other non-navigable waters. The Supreme Court’s grant of review will allow the Trump administration additional time to resolve the issue in their favor, which would likely eliminate or replace the rule.