Fact Checker | Analysis
March 2, 2017 at 3:00 AM
"EPA's so-called Waters of the United States Rule is one of the worst examples of federal regulation and it has truly run amok and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land. It's prohibiting them from being allowed to do what they're supposed to be doing. It's been a disaster. The Clean Waters Act says that the EPA can regulate navigable waters, meaning waters that truly affect interstate commerce. But a few years ago, the EPA decided that navigable waters can mean nearly every puddle or every ditch on a farmer's land or anyplace else that they decide. Right? It was a massive power grab. The EPA's regulators were putting people out of jobs by the hundreds of thousands and regulations and permits started treating our wonderful small farmers and small businesses as if they were a major industrial polluter. They treated them horribly. Horribly."
— President Trump, remarks upon signing executive order to roll back the "Waters of the United States" rule, Feb. 28, 2017
On Feb. 28, Trump signed an executive order instructing a review of a controversial regulation issued during the Obama administration, called the "Waters of the United States" rule. Supporters had hailed the regulation as a necessary move to protect public health, and opponents criticized the federal government for overreach by adopting the rule.
During his remarks signing the executive order, Trump made a handful of suspicious claims, including that the rule has cost "hundreds of thousands" of jobs. We looked into that claim and others he made about the rule.
Decades of debate over the regulation of wetlands and small streams preceded this regulation. Here's a helpful recap from our Washington Post colleagues:
"The push to unravel the rule marks yet another shift in a decades-long debate over to what extent the federal government can dictate activities affecting the wetlands, rivers and streams that feed into major water bodies. The controversy has spurred two separate Supreme Court decisions, as well as a more recent federal appellate court ruling, as the two previous administrations sought to resolve the matter through executive actions.
Two Supreme Court decisions that came down during the George W. Bush administration, in 2001 and 2006, fostered uncertainty over exactly what falls under the federal jurisdiction under the Clean Water Act. In the 2006 Rapanos v. United States decision, for example, the court's four most conservative justices at the time offered a very constrained view that only "navigable waters" met this test. But Justice Anthony M. Kennedy, who refused to join either the conservatives or the liberals, suggested in a concurring opinion that the government could intervene when there was a "significant nexus" between large water bodies and smaller, as well as intermittent, ones."
Given the uncertainty between the two Supreme Court decisions, the Obama administration's Environmental Protection Agency and the U.S. Army Corps of Engineers issued the 2015 rule to clarify the scope of federal jurisdiction. But opponents said the rule vastly expanded federal jurisdictions over the waters, and believed it to be an overreach.
Legal challenges ensued in several states. The U.S. Court of Appeals for the 6th Circuit issued a nationwide stay, halting the rule from going into effect. It has been in limbo since.
Stakeholders published estimates of the potential economic impact of the rule long before it was issued. But since the rule didn't go into effect, it's unclear what Trump is referring to by saying that "EPA's regulators were putting people out of jobs by the hundreds of thousands." And for that matter, it's unclear why Trump says the rule – which, again, has been halted – is "prohibiting" farmers, ranchers and other agricultural workers from "being allowed to do what they're supposed to be doing."
The U.S. Chamber of Commerce and the American Farm Bureau Foundation, two of the biggest critics of the rule, did not conduct a review of jobs lost since the court issued a stay. We checked with several other industry groups that had opposed the rule or asked the EPA to withdraw the rule, but received no estimate for jobs lost.
The White House did not provide evidence for jobs lost due to the Waters of the United States rule. White House spokeswoman Kelly Love sent this statement, and did not respond when we asked for clarification:
"There is solid evidence that the federal permitting programs in question, over many years, have greatly increased costs and delays for major projects. That has negatively impacted the ability of companies, many of which are small businesses, to create jobs. The Obama WOTUS rule would have only worsened an already bad situation. This Administration is committed to improving it and making it work so we can create jobs and grow the economy, while also protecting the environment."
Trump also said under the rule, EPA can regulate "nearly every puddle or every ditch on a farmer's land or anyplace that they decide."
The EPA's final rule published in the Federal Register included an exclusion for puddles:
"The proposed rule did not explicitly exclude puddles because the agencies have never considered puddles to meet the minimum standard for being a 'water of the United States,' and it is an inexact term. A puddle is commonly considered a very small, shallow, and highly transitory pool of water that forms on pavement or uplands during or immediately after a rainstorm or similar precipitation event. However, numerous commenters asked that the agencies expressly exclude them in a rule. The final rule does so."
However, opponents argue that because the term "puddle" has not been defined, the EPA can still regulate what some people may consider puddles.
The rule does regulate some ditches: "The rule continues the current policy of regulating ditches that are constructed in tributaries or are relocated tributaries or, in certain circumstances drain wetlands, or that science clearly demonstrates are functioning as a tributary. These jurisdictional waters affect the chemical, physical, and biological integrity of downstream waters."
In his remarks, Trump also spoke about a Wyoming rancher who supposedly was affected by the rule: "If you want to build a new home, for example, you have to worry about getting hit with a huge fine if you fill in as much as a puddle, just a puddle on your lot. I've seen it. In fact, when it was first shown to me, I said, you're kidding, aren't you? But they weren't kidding. In one case in Wyoming, a rancher was fined $37,000 a day by the EPA for digging a small watering hole for his cattle. His land."
But the case of the rancher, Andy Johnson, is more complex than Trump makes it seem. Our friends at FactCheck.org looked into the case in detail, and found that the Army Corps and the EPA found that the rancher actually constructed a dam on a waterway that was a tributary of the Green River, which is deemed by the EPA as a "navigable, interstate water of the United States." [Update: After our fact-check published, Johnson's attorney Jonathan Wood wrote a blog post saying Trump was "exactly right" on this point.]
According to FactCheck.org:
"Building the dam constituted a "discharge of pollutants" into "waters of the United States," according to the EPA and the Army Corps of Engineers, and thus required a permit that Johnson did not have, or seek. . . . EPA officials say that Johnson received multiple warnings before any enforcement actions were taken.
The EPA rules regarding discharging pollutants into waterways are based on a substantial body of evidence showing that water quality and flow in tributaries and wetlands can affect the water found downstream."
Trump made several problematic statements in his remarks. He claimed that the Waters of the United States rule affected puddles and ditches; it affected some ditches, and technically has an exemption for puddles. But opponents of the rule say that since a "puddle" is not defined in the rule, the EPA can still regulate what some people may consider puddles. Trump also exaggerated details of a case involving a Wyoming rancher.
The focus of our fact-check is whether the rule cost "hundreds of thousands of jobs," and there is no evidence to support that. After the rule was issued in 2015, the U.S. Court of Appeals for the 6th Circuit issued a nationwide stay blocking it from taking effect. We checked with key industry groups that opposed the rule, but did not find research into the impact of the rule on jobs after it was halted in 2015. The rule has been in limbo since, so it is not credible that any jobs have been lost.
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