“This will be a significant retreat from how jurisdiction has been defined for decades,” said Ann Navaro, a natural resources lawyer in Washington who previously worked for the U.S. Army Corps of Engineers. “This will significantly reduce the regulatory burden on landowners, developers and industry.”
The scaling back of the regulation was one of President Trump’s top priorities when he took office, and he issued an executive order in February 2017 directing the Environmental Protection Agency to carry out “the elimination of this very destructive and horrible rule.”
The Obama administration, under the Waters of the United States rule issued in 2015, had asserted federal oversight of a variety of ditches, storm-water controls, lakes, streams and wetlands that feed into larger waterways that are clearly protected under the Clean Water Act of 1972. Many experts believed that the 1972 law already gave the EPA and the Army Corps of Engineers control over smaller U.S. waterways and tributaries, but a series of court rulings had left the extent of that regulatory power ambiguous.
Acting EPA administrator Andrew Wheeler said Tuesday that U.S. property owners should be able to stroll outside and “tell whether water on their property is a federal water without having to hire outside professionals.”
In a briefing with reporters Monday night, Wheeler said the Obama administration had imposed undue regulatory burdens and had “further expanded Washington’s reach into privately owned lands.” He said the Obama regulations had required permits that were often costly and time-consuming to obtain.
Those points were echoed by about 20 members of Congress who spoke at the EPA on Tuesday and turned the agency’s explanation of the regulation into a politically charged event. “For too long, EPA has been a four-letter word in farm country,” said Sen. Pat Roberts (R-Kan.). Senate Energy and Natural Resources Committee Chairman Lisa Murkowski (R-Alaska) complained that people have “needed this army of hydrologists and lawyers to figure out whether your project could begin.”
Wheeler said the Trump administration’s new proposal would eliminate federal protections for areas that contain water only after rainfall. It would no longer regulate groundwater, storm water, wastewater and land already converted for crops. It would eliminate regulation of ditches other than canals, such as the Erie Canal, that are used for commercial shipping or are affected by tides. And it would regulate wetlands or waterways only if they are clearly adjacent to navigable waterways above ground or through “direct subsurface connection.”
State agencies can still regulate Clean Water Act violations, but many experts said that would create the sort of “patchwork” that Wheeler said he wanted to abolish.
The new proposal, which will be open for a 60-day comment period, also would prevent federal officials from ordering changes in the handling of fertilizers that might spill into small waterways. The changes could also benefit coal mining companies that lop off the tops of mountains and fill in valleys with waste, often creating ponds.
The proposal also would drop federal oversight of gravel and sand pits, which are commonly used in hydraulic fracturing, or fracking, and old quarries that fill up with water.
Fracking to extract shale oil or gas requires large amounts of gravel to build drilling pads and sand to fracture oil- and gas-bearing rock. The American Petroleum Institute last year said the 2015 rule “would have imposed burdensome and costly regulations, and stifled energy production with little to no environmental benefit.”
At the EPA event, National Association of Home Builders chief executive Gerald Howard thanked Wheeler for ending the “uncertainty and overreach that makes it incredibly difficult to build homes.”
Wheeler also said the administration would distinguish between “intermittent” streams, which have defined channels, and “ephemeral” streams, which have swales or depressions. Intermittent streams, which would remain regulated, disappear from view when the water table dips below the streambed. Ephemeral streams, which would not be regulated any longer, appear only after heavy rainfall.
“The distinction, I think, is bogus,” said Chris Wood, president of Trout Unlimited, a nonprofit group devoted to the conservation of clean rivers and streams. “You can’t distinguish between the two. Everything is going to find its way downstream.”
Wetlands and headwaters are “critically important areas for the health of rivers and drinking-
water supplies for Americans all over the country,” said Bob Irvin, president of American Rivers, a nonprofit advocacy group seeking to protect and restore waterways. He said that even when bodies of water do not touch one another on the surface, “there may be connections through groundwater.”
The Clean Water Act made it unlawful to pollute a “water of the United States” without a permit, but what constitutes such water has been the subject of lengthy litigation.
In the Rapanos v. United States decision, the Supreme Court split three ways. Its four most conservative justices at the time offered a constrained view that only “navigable waters” met this test. But Justice Anthony M. Kennedy, who refused to join either the conservatives or the liberals, said 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.
The ruling was important because many intermittent streams and wetlands are connected beneath the surface.
Trump’s executive order said federal officials should rely on the dissenting opinion of the late Justice Antonin Scalia, who argued that the law should apply only to “navigable waters.” No court has ever ruled that this test is the single decisive threshold for triggering Clean Water Act protections.
The administration’s new proposal is likely to be in conflict with the Rapanos decision. Legal experts said the administration might be betting that the newly constituted court will look favorably on the new rule. But it could take two to three years of litigation before a case reaches the high court, and by then there could be a different presidential administration.
Dave Ross, assistant administrator for the Office of Water at the EPA, said the administration had chosen to “weave together between the commonalities in those decisions.”
Before issuing the new rule, the Trump administration had already encountered choppy seas in its effort to undo the Waters of the United States. In August, David C. Norton, a federal judge in South Carolina, struck down the Trump administration’s effort to strip clean-water protections from rivers, lakes, streams and other waters that provide drinking supplies across the South in a case led by the Southern Environmental Law Center.
Norton said the administration was violating the Administrative Procedure Act by halting enforcement of the Obama regulation, which is still in effect. “As administrations change, so do regulatory priorities,” he wrote. “But the requirements of the APA remain the same.”
“This will be a huge fight,” Navaro said. “There will be huge pushback from a number of states and even Congress and certainly from environmental groups. I think folks are ready to do battle. We have a lot of complicated litigation to look forward to.”