Trump EPA Proposes Major Rollback Of Federal Water Protections

Dec 11, 2018
Originally published on December 13, 2018 8:26 am

Updated at 4:53 p.m. ET

Vast amounts of wetlands and thousands of miles of U.S. waterways would no longer be federally protected by the Clean Water Act under a new proposal by the Trump administration.

The proposal, announced Tuesday at the Environmental Protection Agency, would change the EPA's definition of "waters of the United States," or WOTUS, limiting the types of waterways that fall under federal protection to major waterways, their tributaries, adjacent wetlands and a few other categories.

The change aims to "provide states and landowners the certainty they need to manage their natural resources and grow local economies,"said the EPA's acting administrator, Andrew Wheeler.

Wheeler said the simpler approach would allow farmers, for example, to decide which water on their property is subject to federal regulation without paying thousands of dollars for consultants and engineers. He said it will also let them and others avoid expensive and time-consuming permits for an Obama-era regulation he called a "power grab."

The proposed change stands in stark contrast to the definition put forward by the Obama administration in 2015, which aimed to widen federal clean water protections to include not only those large waterways, but also the smaller streams and tributaries that feed into them. For years, Republican opponents, agriculture groups and real estate developers have decried that move as a regulatory overreach.

As a candidate and president, Donald Trump painted the Obama-era rule in a similar light, calling it "one of the worst examples of federal regulation" and making its repeal and revision a priority for his administration.

Dave Ross, of EPA's water office, said the water rule rollback will achieve the "careful balance" that Congress intended when it passed the Clean Water Act decades ago.

Randy Noel, chairman of the National Association of Home Builders, said the new proposal should make it easier for development to take place.

"As a home builder, I'm pretty excited about it because we hadn't had any lots to build on," he said.

Noel lives in south Louisiana, an area with a lot of wetlands. He says developers were running scared because it wasn't ever clear which wetlands were federally regulated and which weren't. "Hopefully this re-definition will fix that," he said.

Under EPA's proposal, the only wetlands that will be federally protected are those that are adjacent to a major body of water, or ones that are connected to a major waterway by surface water.

This latest rollback is one of dozens of environmental regulations the Trump administration has aimed to curtail or replace in an effort to boost industry and fossil fuel production. The administration hopes to finalize the rule next year, but environmental groups are already threatening legal challenges.

"This proposal is reckless," said the Natural Resources Defense Council's Jon Devine in a statement. "Given the problems facing our lakes, streams and wetlands from the beaches of Florida to the drinking water of Toledo, now is the time to strengthen protections for our waterways, not weaken them."

One of the biggest points of contention is the erasure of protections for ephemeral or intermittent waterways under the new plan. Ephemeral streams only flow after precipitation, but they constitute a major part of the country's water systems.

A study referenced by the EPA under President Obama says that nearly 60 percent of all U.S. waterways, and 81 percent in the arid Southwest, are ephemeral or flow seasonally — the types of waterways that would lose protections. In his announcement, Wheeler disputed those figures, saying they couldn't be backed up.

Asked for a more accurate figure, EPA officials said they did not have a precise number.

Chris Wood, president of Trout Unlimited, a conservation organization, said that's just one of the proposal's problems.

"A lot of these environmental issues are complicated and they're confounding, and you can see both sides of them," he said.

But, in addition to implicating wildlife habitat and areas for recreation, Wood said this rule could affect people's drinking water. For that reason, he said, "if need be and we find it deeply flawed enough, we will likely litigate."

Arguments over federal jurisdiction and the definition of "waters of the U.S." have been going on for decades.

Passed in 1972, a few years after Ohio's Cuyahoga River literally caught fire, the Clean Water Act aimed to maintain the "chemical, physical and biological integrity of the Nation's waters."

To do so, it largely prohibited the discharge of pollution into the country's "navigable waters."

Successive administrations, interest groups and the U.S. Supreme Court have been fighting over the definition of "navigable waters" and their scope ever since.

The Obama administration embraced a broad definition, arguing that pollution upstream makes its way downstream and should thus be regulated.

The Trump administration is proposing a more restrictive interpretation based on a 2006 opinion by the late Supreme Court Justice Antonin Scalia, who believed that the Clean Water Act only applied to relatively permanent waters. Other waterways and bodies, he argued, should be regulated by states.

Both administrations cited a need for clarity and regulatory certainty in announcing their rules.

With lawsuits likely and a 60-day public comment period ahead, the administration's proposal is far from becoming law.

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ARI SHAPIRO, HOST:

The Clean Water Act regulates pollution in the nation's waterways. Politicians, lawyers and activists have argued for decades about just which waters should be protected. Today the Trump administration weighed in with a proposal to strip federal protections from thousands of miles of waterways and vast areas of wetlands. NPR's Nathan Rott reports.

NATHAN ROTT, BYLINE: When the Clean Water Act was passed in 1972, it was pretty direct, restricting pollution in the nation's navigable waters. Think waterways that are big enough to float a boat. What was less clear is how far the federal government should go to stop that pollution. Does that mean tributaries to those bigger waterways should be protected or just the waterways themselves?

In 2015, the Obama administration sought to bring clarity, imposing a broad definition that included wetlands and upstream water sources. The Trump administration, seeking its own clarity, is doing the opposite, proposing to severely restrict the number of waterways that get federal protection. Here's Andrew Wheeler, acting administrator of the Environmental Protection Agency.

(SOUNDBITE OF ARCHIVED RECORDING)

ANDREW WHEELER: Today, EPA and the Army Corps are proposing a new definition of waters in the United States that puts an end to the previous administration's power grab.

ROTT: Wheeler signed the proposal surrounded by Republican lawmakers, agriculture interests and manufacturing groups, folks who decried the Obama rule as a regulatory overreach. Randy Noel, chairman of the National Association of Home Builders, says that the new proposal should make it easier for development to take place.

RANDY NOEL: As a home builder, I'm pretty excited about it 'cause we hadn't had any lots to build on.

ROTT: Noel lives in south Louisiana, an area with a lot of wetlands. He says developers were running scared the last few years because it wasn't ever clear which wetlands were federally regulated and which weren't.

NOEL: Hopefully this redefinition will fix that.

ROTT: Under the new proposal, the only wetlands that will be federally protected are those that are adjacent to a major body of water or ones that are connected to a major waterway by surface water. Untold millions of acres of wetlands will no longer have that federal protection. Neither will untold miles of ephemeral streams or waterways that only flow after precipitation. The EPA says it does not have a precise number for either. Chris Wood, president of Trout Unlimited, a conservation organization, says that's one of the proposal's problems.

CHRIS WOOD: A lot of these environmental issues are complicated, and they're confounding. And you can see both sides of them. It implicates our drinking water.

ROTT: Beyond that, he says, it compromises wildlife habitat and areas that people use for recreation. A number of environmental groups are already promising to challenge the proposal. Trout Unlimited, Wood says, is not an overly litigious group.

WOOD: But, you know, when it comes to tainting drinking water, which, you know, we all need every day - you know, if need be and we find it deeply flawed enough, we will likely litigate.

ROTT: The public now has 60 days to comment. Nathan Rott, NPR News. Transcript provided by NPR, Copyright NPR.