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Wine Industry Insight
Despite optimism and a spate of giddy articles declaring an end to federal over-reach on Waters Of The United States (WOTUS) issues, President Donald Trump’s rollback of the Clean Water Rule offers temporary relief, but no permanent solution.
This is because the President’s action rolls back a proposed set of executive action regulations that were never implemented because they were suspended during litigation in several federal courts and could be re-instated by the stroke of a new president’s pen.
Technically, the action also does not affect the legal status of pending court cases — such as John Duarte’s — which were based on legal precedents that did not rely on the now-suspended Rule.
Many of the current articles about the Trump action are incorrect because of confusion between the Clean Water Act which is legislation and the Clean Water Rule.
The Clean Water Act regulates “navigable waters” but has been gradually expanded since its 1972 passageÂ by agency regulatory actions to include federal jurisdiction upstream to non-navigable waters and to normally dry areas and direct regulation of farming practices.
The controversial — and now-suspended Clean Water Rule — expanded the definition and boundaries of what had previously been considered under the expanded regulation of the Waters of the United States. This study from the Congressional Research Service offers a thorough look at the Rule and its implications.
In fact, much of the Clean Water Rule as well as the case against Duarte were based on the Supreme Courtâ€™s â€śNexusâ€ť concept that puts groundwater, ditches on farms and homeowner property, urban rainwater drains, and land which is dry except during rain under federal jurisdiction. Justice Kennedy, the Nexus author, hasÂ expressed second thoughts about his creation.
Significantly, the nexus concept and other Justice Department legal creativity, previously allowed the prosecution of John Duarte to proceed in federal court without the use of the Rule. That, of course, could change with the new administration’s Justice Department and federal court appointments.
This is because, in Duarte’s case, the Justice Department and EPA found existing, pre-Rule court precedents to define dry land as water, the point of a plow as a source of pollution and plowed soil a pollutant. (How does soil become a pollutant? And a plow a â€śpoint sourceâ€ť of pollution?)
Trump’s rollback of the Clean Water Rule will stop its use by the EPA and U.S. Army Corps of Engineers. For his term in office. But, because the rule was an executive decision and not legislative, it can easily be re-instated by future presidents.
In addition, during his term in office, Trump’s actions will stop EPA and Justice Department actions on Rule enforcement and prosecution — something that can also change with administrations.
Numerous proposals to amend the Clean Water Act to better define its scope in legislation have failed.