Opinion—The battle over the 2015 Clean Water Rule continues

Jul 27, 2017

By Don Wallis

A protracted legal struggle benefits no one.

Jim Parsons’ article in the July issue of ENR outlines the continuing legal struggle between the construction industry and environmentalists over the 2015 Clean Water Rule enacted by the Obama administration.

The 2015 Rule “brings smaller, state-regulated waterways and wetlands under federal pollution-control jurisdiction.”

Environmentalist hailed the bill as a much needed measure to prevent the construction industry from destroying wetlands and smaller bodies of water during site work for building projects.

Contractors have argued vehemently that the Rule is unreasonably broad and restrictive, and adds another layer of unnecessary and expensive regulatory oversight to construction projects.

This is the classic environmental controversy— economic development and the jobs it produces vs. the protection of the environment.

It is also a classic, agonizingly slow legal standoff where both sides appear to be intractable. The controversy is in the process of working its torturous path through the courts. “The U.S. Supreme Court is scheduled to hear arguments this fall on whether the appellate court has jurisdiction over the challenges.” Only after this procedural issue has been decided can the appellate court’s review of the Rule begin.

This is disheartening.

Every reasonable observer of the EPA knows that it has vastly exceeded its mandate to protect the “navigable waterways of the United States.” It is the posterchild of the Administrative State run amok.

It is also true that it is unconscionable for contractors to cavalierly destroy viable bodies of water in the pursuit of short-term profits.

The court system is designed to protect the rights of litigants and the rights of the general public.

Our society needs to be able to resolve controversies in a reasonable amount of time so we can move forward with some certainty as to what the law requires.

When the legal system allows litigants to bog down a lawsuit in years of litigation it does a disservice to the people of this country.


EPA-Corps Plan to Rescind 2105 Rule May Face Long Path, Jim Parsons, ENR, July 17, 2017.


Don Wallis has more than 40 years experience in residential and commercial construction, and land development. He also has a law degree and currently teaches Environmental Law at Santa Fe Community College.