The dismantling has begun. Last Tuesday, U.S. President Donald Trump signed an executive order (yes, another one) to peel back one of the more controversial layers of environmental protections put in place by the Barack Obama administration.
Trump’s order directs the Environmental Protection Agency (EPA) to “review” a rule that assigns federal jurisdiction over tributaries and headwaters that flow into federally-protected water sources.
Formally called a technical regulation, the Clean Water Rule had one fairly important purpose in the eyes of the Obama administration: It clarified which waters, streams and wetlands were protected under the Clean Water Act (CWA) and, by doing so, gave the EPA the voice to prevent destruction of wetlands or tributaries that might affect key water sources further downstream.
Environmentalists fought for this clarification for years. A landmark Supreme Court ruling in 2006 (Rapanos v. United States) brought this issue into sharp focus when a divided court (4-1-4) ruled on whether a commercial developer was within his right to fill in wetlands on his own Michigan property. Four of the justices sided with the developers, while four said the runoff that eventually entered navigable waters downstream was a violation of the federal Clean Water Act. One justice abstained. And the issue of the EPA’s powers to protect major rivers from upstream pollution was left unanswered.
In 2015, then President Obama signed an executive order codifying the precise definition of the EPA’s jurisdiction under the CWA. “Navigable waters” were now not just major rivers and lakes that could potentially serve as irrigation and drinking water sources for U.S. commerce and livelihood, but those sources that could directly impinge upon their safekeeping, such as wetlands and tributaries at the river’s headwaters.
Some private property owners say the Clean Water Rule (also called the Waters of the U.S. rule or WOTUS) smacks of federal overreach.
In states like Colorado, where a family’s ancestral water rights can stretch back hundreds of years, some see WOTUS as an encroachment on state oversight, not to mention private business. In June 2015, 16 states filed suit to block the new rule, alleging that it endangers “the very Constitution” by asserting “independent sovereignty” over states’ jurisdictions. The rule is being blocked until the challenge is heard in court.
Trump has vowed to roll back the rule. But since the WOTUS executive order was signed into law almost two years before he took office, the new president needs the EPA’s help. And this is where the fidelity of career environmental bureaucrats may well be tested. Trump needs the EPA to come up with a modified water rule that can stand up to a vigorous public comment period and meet the criteria that his administration expects.
Trump no doubt knows that the outcome of that divisive process is a metaphor for his presidency: What is cast upstream can muddy outcomes later. Removing EPA oversight of wetlands and tributaries may signal carte blanche to property and business owners who figure their actions are now irreproachable. An environmental disaster, like the one that unfolded near a tributary of the Missouri River in December 2016 while the rule languished under a court injunction, could be seen as a mark on his administration’s legacy.
And as Juliana Rose Pignataro of the International Business Times pointed out, it would be a mistake to assume that Trump’s elimination of the Clean Water Rule benefits only Trump’s supporters. It also benefits Trump properties.
Golfing organizations are an outspoken opponent of WOTUS because of the administrative burdens it places on some golf course developments.
Rewriting environmental rules so they can’t interfere in private water and wetland use could reduce development and administrative costs in states like Florida and North Carolina, where Trump golf courses reside. Leaving the rule in place would inevitably cost Trump more staffing and maintenance costs on his properties and more potential legal costs for new developments.
So Trump’s dislike of the rule isn’t surprising. Nor is his peculiar explanation last Tuesday when he tried to describe what a federal Clean Water Rule is designed to do. The president said WOTUS is a “horrible” rule because it gives the EPA the power to regulate “nearly every puddle or every ditch on a farmer’s land, or anyplace else that [the agency should] decide.” That might be true in isolated cases if the developer or property buyer refused to do his own due diligence first, but his explanation isn’t supported by EPA literature, which notes: “[The] rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream and actually clarifies which secondary water sources would be of concern.”
The Clean Water Rule was crafted to force landowners that border tributaries and wetlands to give more forethought to the environmental impact of their actions before they fill in wetlands or build dams that impact water quality downstream. Like many environmental laws, it places the onus back on the landowner and sets a benchmark of responsibility to protect American waters from inadvertent pollution.
Meanwhile, environmentalists are gearing up to fight Trump’s efforts to gut key regulations. In Connecticut, where a 24 percent cut to the EPA’s national budget and a 30 percent cut in workforce could have significant impact on pollution cleanup and remediation efforts, local groups like Save the Sound and the Connecticut Fund for the Environment are vowing to fight the administration’s latest moves.
With Scott Pruitt, a longtime foe of climate change legislation, now heading the EPA, Trump appears to be lining up the axe for even more rule-cutting. It doesn’t bode well for air and water protections once assumed to be key federal responsibilities.