The Trump administration on Tuesday initiated the biggest rollback of Clean Water Act protections since shortly after the statute became law in 1972, proposing to remove federal pollution safeguards for tens of thousands of miles of streams and millions of acres of wetlands.
The EPA’s proposed rule would overwrite a stricter Obama-era regulation, in yet another attack on the legacy of President Donald Trump’s predecessor. But the rollback would go much further than just erasing Barack Obama’s work.
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The Trump proposal represents the latest front in a decades-long battle over the scope of the landmark environmental law, whose requirements can impose major costs on energy companies, farmers, ranchers and real estate developers. Reversing Obama’s water regulation was one of Trump’s top environmental priorities — he signed an executive order directing the new rule barely a month after taking office, even as he repeatedly said he wanted “crystal clear water.”
Geoff Gisler, an attorney with the Southern Environmental Law Center, called the proposal a “sledgehammer to the Clean Water Act.”
“Out of all the anti-environmental attacks we have seen from this administration, this may be the most far-reaching and destructive,” he said in a statement.
The new proposal embraces a view that industry groups have pushed for years: that the law should cover only major rivers, their primary tributaries and wetlands along their banks. Acting EPA Administrator Andrew Wheeler said this will save regulatory costs for industries such as mining and homebuilding, while arguing it will have little impact on the health of the country’s waters.
At a ceremony unveiling the proposal, Wheeler criticized the Obama administration for contending that its version of the rule was about water quality. “It was really about power — power in the hands of the federal government over farmers, developers and landowners,” he said.
The Trump administration’s version will allow Americans to build homes and grow crops, Wheeler added.
The proposal won plaudits from the American Farm Bureau Federation, the National Mining Association, the National Rural Electric Cooperative Association, the National Association of Manufacturers and other industry groups.
“This new rule will empower farmers and ranchers to comply with the law, protect our water resources and productively work their land without having to hire an army of lawyers and consultants,” Farm Bureau President Zippy Duvall said in a statement.
A cavalcade of Republican lawmakers also attended the ceremony at EPA headquarters to praise the rule. Among them were Senate Energy and Natural Resources Chairwoman Lisa Murkowski (R-Alaska) — who noted that her state’s wetlands are larger than all of Texas — as well as Senate Agriculture Chairman Pat Roberts (R-Kan.), House Energy and Commerce Chairman Greg Walden (R-Ore.) and House Natural Resources Chairman Rob Bishop (R-Utah).
But Democrats on Capitol Hill warned the proposal would undo improvements in cleaning up many waterways in recent decades — and they vowed to take a microscope to it when they take control of the House next year.
Rep. Peter DeFazio, who’s expected to chair the Transportation and Infrastructure Committee told reporters he planned on holding “extensive oversight hearings and exposing how this would harm the majority of the people and interests in this country to favor a few polluting entities and a few rapacious developers.”
Sen. Ben Cardin, a longtime advocate for cleaning up the streams and rivers that feed the Cheseapeake Bay, said the effects of the weakened regulation would be far reaching.
“They put politics over public health. The public has a right to expect safe drinking water,” he said. “This proposed rule puts that in jeopardy. It puts our economy in jeopardy, from tourism to agriculture, the economy so much depends upon clean water.”
The scale of the proposal‘s changes could be felt acutely across the country.
In the arid West, where the majority of streams flow only after rainfall or for part of the year, entire watersheds would be left unprotected from pollution. In Arizona, for instance, as much as 94 percent of its waters could lose federal protection under the new definition, depending on the how the agencies interpret key terms. Meanwhile, Arizona state law also prevents it from regulating waterways more stringently than the federal government requires.
In North and South Dakota, the proposal would leave unprotected millions of acres of wetlands that were created when glaciers retreated at the end of the last ice age 10,000 years ago, leaving pockmarks on the landscape. Many of those “prairie potholes” have been drained to enable farming. The ones that remain can be far from the nearest river or stream, but help hold back floodwaters during heavy rains, filter fertilizer runoff and provide habitat to more than half of the country’s migratory ducks.
The Trump administration argues the new definition would return power to state governments, which it says are in a better position to set the pollution rules and protect the waterways within their own borders.
But environmentalists say a narrower federal regulation will create a race to the bottom and leave downstream states to bear the brunt of the harm.
Thirty-six states have laws on the books like Arizona’s, which prevent them from implementing stricter regulations than the federal government’s, according to a 2013 report by the Environmental Law Institute, meaning any waterways denied federal protection under the Trump administration proposal would be exempt from state regulation as well, unless state legislatures amend their laws.
State lawmakers have been trending in the opposite direction, though. In Wisconsin, one of a handful of states with more stringent wetland protections than the federal government’s, Gov. Scott Walker signed a law this springdramatically reining in the additional protections.
Today, most of the country’s waterways are overburdened by pollution from farm fields, city streets and industrial facilities. More than two-thirds of the country’s lakes and ponds and more than half of the country’s rivers and streams are impaired, according to EPA’s latest figures. That includes roughly 1 in 4 of the rivers that serve as drinking water sources.
The new proposal to retract protections faces months of public comment and interagency review before it can be finalized, at which point it would likely face numerous lawsuits.
Environmental groups that panned the rule said they were already planning those challenges.
“Make no mistake: we will make use of the full strength of our nation’s bedrock environmental laws to protect families and communities from dangerous attacks like this. We will hold this administration accountable in court as we have from the start,” said Earthjustice President Abigail Dillen.
EPA estimates that the new rule would save as much as $164 million in regulatory costs compared to the Obama administration rule, while reducing as much as $38 million in benefits. However, the Trump administration last year altered the agency’s approach to calculating the environmental benefits by removing consideration of the benefits that wetlands provide, like filtering pollution, holding back stormwater and providing habitat to fish and birds.
How far the Clean Water Act extends has been a source of controversy virtually since it became law. For years, EPA and the Army Corps of Engineers, which issues permits for filling in wetlands and streams, took an expansive view of their power, requiring that projects damaging even small, seasonal streams and patches of wetlands in an otherwise dry field receive permits. But in two Supreme Court decisions — the first in 2001 and later in 2006 — justices concluded that approach was overreaching.
The high court, however, failed to draw a clear line on where federal jurisdiction should end.
In the 2006 case, Rapanos v. United States, the court issued a splintered 4-1-4 decision, with former Justice Anthony Kennedy joining conservatives but writing his own, stand-alone decision that set a separate test for which streams and wetlands should be federally protected. Appellate courts have largely ruled Kennedy’s decision to be controlling.
Kennedy concluded that streams and wetlands with a “significant nexus” to downstream waters should fall under the scope of the law, but that legal test has led to mass confusion and inconsistency, with decisions left largely to regulators in the field. Industry and environmentalists alike asked Congress to intervene, but when lawmakers failed to act on the issue, the Obama administration in 2015 issued a regulation aimed at clarifying which waterways fell under federal power.
That rule, pegged to Kennedy’s 2006 Rapanos opinion, cemented protections for small, headwater streams and wetlands that are connected to the larger tributary network. EPA estimated it would slightly increase federal authority, by less than 5 percent, compared to the agencies’ previous approach.
But industry groups argued it would go far further, with the American Farm Bureau Federation contending it would regulate dry ditches and rain puddles.
Trump embraced that perspective in the executive order he issued in February 2017. It demanded the rule be repealed and replaced with a rule cementing a narrower definition of federal power that hewed to conservatives’ opinion in the Rapanos case, drafted by the late Justice Antonin Scalia.
But the Trump administration has struggled just to overturn the Obama rule. The Supreme Court in January ruled the issue must first be heard by district courts, creating a regulatory patchwork. The Obama-era rule is now on hold in roughly half the states, which are covered by district court injunctions, and on the books in the other half, after a South Carolina court ruled this summer that the Trump administration’s effort to delay it was illegal. After more than a year, the Trump administration has yet to finalize its effort to formally repeal the 2015 rule.
The legal battle over the replacement rule could prove even more arduous, meaning the policy battle may not change protections on the ground for years. But, if the issue again reaches the high court, it will face a different panel of justices. With Kennedy now retired, replaced by Justice Brett Kavanaugh, who casts a skeptical eye on any agency taking action outside a strict interpretation of authorities granted by Congress, the Trump rule could face better odds.
Alex Guillén and Eric Wolff contributed to this report.