The Trump administration has released a replacement for the former “waters of the U.S.” rule that significantly reduces federal jurisdiction over streams and wetlands, triggering what almost certainly will be a series of protracted legal battles over the scope of the Clean Water Act.
EPA's new Navigable Waters Protection Rule would eliminate federal protection provided in the Obama administration's 2015 rule for ephemeral streams, which flow in response to rainfall or snowmelt, restricting jurisdiction to four major categories of waters: territorial seas and traditional navigable waters; perennial and intermittent tributaries to those waters; certain lakes, ponds and impoundments, and wetlands adjacent to jurisdictional waters.
Farmers, homebuilders, energy companies and a broad cross-section of American industry applauded the new rule, saying it will make the regulatory landscape much clearer. They also argue, as EPA officials did on a conference call with reporters Thursday, that states either already have authority to protect those waters that will no longer fall under federal purview, or are best equipped to step in to provide the necessary protection.
The rule eliminates the proposed rule's placement of ditches in a separate category of waters, which farm groups in particular were concerned would create confusion, despite the fact that most ditches are not considered jurisdictional.
Agriculture Secretary Sonny Perdue released a statement saying President Donald Trump "is restoring the rule of law and empowering Americans by removing undue burdens and strangling regulations from the backs of our productive farmers, ranchers, and rural land-owners. The days are gone when the federal government can claim a small farm pond on private land as navigable waters.”
National Cattlemen’s Beef Association President Jennifer Houston commended the administration “for listening to cattle producers and for working with us to get us to this point. We look forward to working with EPA and the Army Corps of Engineers to successfully implement this new rule in the years to come.
“NCBA relentlessly fought WOTUS on Capitol Hill, at the agencies, and in the courts,” Houston said. “Today, we can rest a little easier knowing that some power has been put back in the hands of landowners.”
Conservation groups and societies representing a diverse array of natural resources scientists, however, have been heavily critical of the administration’s proposal.
In fact, the new rule was announced a day before EPA’s own Science Advisory Board is scheduled to finalize a draft “commentary” on the proposed rule that says it “decreases protection for our nation’s waters and does not support the objective of restoring and maintaining ‘the chemical, physical and biological integrity’ of these waters,” as stated in the Clean Water Act.
Jon Devine, head of federal water policy at the Natural Resources Defense Council, called the SAB's draft document "the most damning evidence yet of how dangerous the EPA’s scheme is and how far the agency is willing to go to help oil and gas operators, mining companies, factories, and other industrial polluters — at the cost of the clean water we all rely on."
An EPA official on the press call Thursday said that while the SAB is "an important organization," it is not "constrained by the law. We are."
Devine cited the SAB commentary to criticize the rule for showing a "disregard for science."
An EPA official on the press call said, "We have used science, contrary to popular belief. Science flows throughout this rule." But he also said EPA and the Army Corps of Engineers were careful to take legal considerations into account. "We have done a lot to make sure it withstands a legal challenge," he said.
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The National Wildlife Federation vowed to take legal action. “Since the administration refuses to protect our waters, we have no choice but to ask the courts to require the EPA to follow the law,” NWF President and CEO Collin O’Mara said. “We simply cannot afford to lose protections for half of our remaining wetlands, nor can we take any unnecessary chances with our drinking water.”
In rejecting jurisdiction for ephemeral streams, the rule differs significantly from the 2015 rule, which relied on an extensive scientific analysis on water connectivity that found “ample evidence” to demonstrate “many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters.”
In the final rule, EPA and the Corps said they used the Connectivity Report "to inform certain aspects of the [WOTUS] definition, but recognize that science cannot dictate where to draw the line between federal and state waters, as this is a legal question that must be answered based on the overall framework and construct of the CWA."
EPA and the Corps were guided by an executive order issued by President Donald Trump early in his presidency which directed the agency to come up with a new rule using as a model the late Justice Antonin Scalia’s opinion in the 2006 Rapanos decision.
That decision was a 4-1-4 split — with former Justice Anthony Kennedy the man in the middle — that the previous administration interpreted as requiring the government to show waters must have a “significant nexus” to traditional navigable waters in order to regulate them.
The test was advanced by Kennedy — and has been upheld by all the circuit courts of appeals that have considered the question. Now, however, it will not be used. The EPA official on the press call said it was "complicated to understand — let alone apply."
Reaction from Capitol Hill was swift and predictable. Senate Agriculture Committee Chairman Pat Roberts, R-Kan., said the 2015 rule "was nothing but a severe regulatory overreach. I’m thankful this administration’s rule is a much more reasonable approach to regulation.”
Delaware Sen. Tom Carper, ranking Democrat on the Senate Environment and Public Works Committee, said that "by removing federal clean water protection from millions of miles of streams and more than half of the nation’s wetlands, this rule will result in more pollution, dirtier water, less certainty and higher costs for everyone except the upstream polluters the Trump Administration wants to protect. It breaks the law and ignores the basic science that tells us our waterways are critically interconnected."
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