Congressional Democrats Skeptical of Clean Water Rule Implementation

House Democrats issued a letter to the Army Corps of Engineers last week, questioning implementation of the new Navigable Waters Protection Rule (NWPR). The letter, from House Transportation and Infrastructure Committee Chair Peter DeFazio (D-OR) and Water Resources and Environment Subcommittee Chair Grace Napolitano (D-CA), asks Corps Assistant Secretary of Civil Works R.D. James for data that the Corps decisions regarding the new rule have been based on.

DeFazio and Napolitano said EPA and the Army Corps have an obligation to reveal how they are implementing the rule and the basis for making regulatory decisions or jurisdictional determinations. The House members asked for all decisions made since June 22, when the new rule went into effect. The letter asked for data sets used under the rule, whether any site visits were conducted, and any policy guidance the agency developed.

In the Senate, Democrats introduced a resolution calling on EPA to maintain and strengthen the Clean Water Act. The resolution comes as a direct rebuke to the NPWR and other Trump Administration regulatory rollbacks. Eight Senate Democrats sponsored the resolution. The resolution also criticizes the Trump Administration for not taking action on regulating perfluoroalkyl and polyfluoroalkyl substances (PFAS).

The NWPR went into effect in 49 states in June of this year. A judge in the U.S. District Court in Colorado issued a freeze of the law in that state. Other lawsuits attacking the regulation are pending in district courts throughout the country. Litigants are pursuing efforts to block the measure on the grounds that it does not comply with the Administrative Procedures Act.

APWA submitted comments to the Environmental Protection Agency (EPA) on the proposed rule earlier this year, showing appreciation for the clarity the revised definition provides in terms of ditches and municipal separate storm sewer systems (MS4’s). However, APWA expressed serious concerns regarding the revised definition and assumptions made in the proposed rule, which are still valid with the new final rule. In three key areas, the new proposed rule could do serious harm to public works professionals and programs:

  • Continued permitting uncertainty
  • Assumptions regarding cooperative federalism
  • Additional costs for water providers and water customers

For more information, please contact APWA Government Affairs Manager Sean Garcia at sgarcia@apwa.net, or by phone at (202) 218 – 6734.