What Is Trump Replacing The Clean Water Act Repeal With?

On Tuesday, the Environmental Protection Agency and the Us Army Corps of Engineers presented the Trump administration'southward proposal to undo a major Obama-era environmental regulation, the Clean H2o Rule.

The rule divers the "Waters of the United states," a.thou.a. WOTUS. These are the rivers, streams, and lakes that fall under federal jurisdiction and forms the foundation of a massive piece of environmental regulation, the Clean Water Act.

The Obama rule, offset published in 2015, was meant to analyze which streams and wetlands fall nether federal clean h2o protections — a question that had been causing legal frustration for years.

But it triggered fierce blowback from subcontract and manufacture groups across the country. "Opponents condemn it as a massive power grab by Washington," Politico reported, "proverb it will give bureaucrats menu blanche to swoop in and penalize landowners every time a cow walks through a ditch." Some of those criticisms were overblown (it doesn't cover puddles, for example), but the rule was widely cited past conservatives as a perfect example of EPA overreach under President Obama.

Last year, President Trump signed an executive order directing the EPA to begin the long process of repealing the Clean Water Rule and replacing information technology with ... something else.

Before this year, the EPA suspended the Obama dominion. And on Tuesday, the agency revealed its replacement, i it said volition shine over the problems that made the 2015 regulation and so contentious.

"For the get-go time, we are conspicuously defining the divergence between federally protected waterways and state protected waterways," said EPA acting Administrator Andrew Wheeler in a press release. "Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on technology and legal professionals."

However, environmental groups said the new definition would cut the number of waterways the federal government must regulate, leaving them vulnerable to pollution. Information technology excludes, for example, waterways that flow only for parts of the year, like later on rainstorms while snow melts.

"This sickening souvenir to polluters volition result in more unsafe toxic pollution dumped into waterways beyond a vast stretch of America," said Brett Hartl, government affairs managing director at the Centre for Biological Diversity, in a statement. "The Trump assistants's radical proposal would destroy millions of acres of wetlands, pushing imperiled species like steelhead trout closer to extinction."

EPA officials said they didn't know just how many waterways would be excluded from federal jurisdiction under the new proposal. However, a document obtained past East&E News showed that the EPA and the Army Corps had estimated final yr that eighteen per centum of streams and 51 percent of wetlands would not receive federal protections nether the revisions.

Tuesday's announcement is only the showtime of a long regulatory and legal process. The EPA is taking comments on the proposal for threescore days and volition host a listening session in Kansas City, Kansas, in January. In the meantime, it'southward worth understanding how WOTUS became so controversial and what it ways for huge swaths of the country. Here's what you demand to know.

What the Waters of the United states rule really does

Caught between a rock and a tributary place.

Shutterstock

To sympathise this rule, we need to go dorsum to 1972, when Congress passed the Clean Water Act. That law features dozens of regulations and permitting requirements for anyone discharging pollution into the "waters of the United States" in a way that could bear upon homo wellness or aquatic life. These rules use to factories, power plants, golf game courses, new housing developments — and much, much more.

For example, under the law, a facility storing oil that could leak needs to fix a spill prevention programme aimed at minimizing discharges. If the facility is far abroad from whatever "waters of the United States," nonetheless, it doesn't face these requirements.

But hither's the tricky function. The Clean H2o Human activity doesn't precisely define what "waters of the United States" ways. That'southward left to the EPA and the Regular army Corps of Engineers. And it's a difficult question. For instance, the police force is articulate that major navigable rivers and lakes and whatsoever connected waterways should be protected. That includes major rivers like the Mississippi River, the Colorado River, and the Ohio River. But what about waterways that are merely loosely connected? What near the 60 percentage of streams that are dry for part of the year but then connect when information technology rains? Any pollution dumped into those waters could affect key ecosystems. Should they be regulated?

In the 2000s, this doubtfulness led to a pair of Supreme Court decisions that only ended up creating more bewilderment. In a split decision in Rapanos v. Usa in 2006, Justice Anthony Kennedy argued that Clean Water Act protections applied to wetlands that "significantly affect the chemical, physical, and biological integrity of other covered waters." But Justice Antonin Scalia argued that protections only applied to wetlands "with a continuous surface connection" to navigable water — a far smaller number of wetlands. And it wasn't totally clear which opinion took precedence.

What'd I do?

William Thomas Cain/Getty Images

"The short answer is that the land of post-Rapanos wetlands jurisdiction is a mess," Richard Frank of the University of California Davis told Greenwire in 2011. In the ensuing years, whenever a dispute arose over whether a landowner — exist it a housing developer, a golf game course, a subcontract, or what accept you lot — needed a Clean Water Act let or not, courts had to resolve it on a case-by-case footing.

So under Obama, the EPA and Army Corps of Engineers tried to bring clarity to the matter. They sifted through more 1,200 scientific papers to figure out which types of bodies of water were important to aquatic ecosystems and therefore deserved protection, per Kennedy's opinion.

The terminal Waters of the United states rule, published in June 2015, outlined which bodies of h2o were automatically covered by the Make clean Water Human activity — requiring permits for discharges or dredging or clay fill — and which ones still needed to be dealt with on a instance-by-example ground. For instance:

• In the past, tributaries of navigable rivers were evaluated on a case-by-case footing. But under the new dominion, they're automatically protected if they have a bed, a bank, and a high-water mark. This includes many streams that are dry for role of the year. Waterways without these features are nonetheless dealt with case by case.
• Wetlands and ponds are now automatically covered if they're inside 100 anxiety or within the 100-year floodplain of a protected waterway. Otherwise, it'due south case by example.
• Certain "isolated" waters that are not continued to navigable waters now go automatic protection if they accept a "meaning nexus" to protected waters — like the vernal pools of California.

The dominion as well explicitly exempted a number of bodies of water frequently found on farms, such as puddles, ditches, artificial ponds for livestock watering, and irrigation systems that would revert to dry country if irrigation were to stop. Here's a graphic:

(EPA)

For its part, the EPA argued that this rule didn't significantly expand the waters nether its jurisdiction. Rather, it created more certainty for about 3 percent of the nation'due south waterways — to avoid bringing cases to court every fourth dimension in that location was a legal gray area. According to the EPA, the rule offered clearer protection to upstream bodies of h2o that contribute to drinking supplies for 1-third of the population.

Before the rule came out, few who worked on it expected widespread blowback. "This dominion will provide the clarity and certainty businesses and industry demand about which waters are protected by the Make clean H2o Act," Obama said when the final rule was announced. But things turned out very differently.

Why the Waters of the U.s.a. rule became so controversial

Opponents of the rule — particularly farming and ranching groups — conspicuously didn't buy the EPA's line that this was merely a technical update. Nor were they comforted by the EPA's exemptions for agriculture. Instead, they called it a power grab.

"The agency is making it impossible for farmers and ranchers to look at their land and know what can be regulated," argues the American Farm Bureau Federation on its site. "EPA has vastly expanded its authority beyond the limits canonical by Congress and affirmed by the U.South. Supreme Court."

Some Western farmers, for instance, fretted virtually the open up, unlined canals they use to irrigate their lands during the growing season. These systems divert water from streams, serve as water sources for wildlife, and tin can connect to larger bodies of water elsewhere. As Reagan Waskom and David Cooper of Colorado State University explain, farmers and ranchers feared that these canals would fall under the rule'southward definition of "tributary" and might have to be replaced by costly pressurized pipes. Or, alternatively, that fertilizer use near these waterways would be more than strictly regulated.

Water stands in an irrigation canal at a sod farm on August 8, 2014, in Lodi, California.

Justin Sullivan/Getty Images

Defenders of the rule dismissed these scenarios. Jon Devine, a lawyer with the Natural Resources Defense Quango, pointed out that the Clean Water Act has always regulated agriculture lightly. "This rule doesn't really modify those exemptions," he says. Indeed, one contempo study establish that the EPA's jurisdiction over farms actually shrank under the new rule.

The EPA was also pretty explicit that it wouldn't target farmers. "We will protect make clean water without getting in the way of farming and ranching," and then-EPA Administrator Gina McCarthy told the National Farmers Union in 2015. But few farmers or ranchers believed her. Their statement was that the rule was vague plenty that the EPA could crack down on them if it chose. It's basically a question of trust. And at the moment, conservatives are not particularly inclined to trust the EPA.

Joni Ernst, a Republican senator from Iowa, fabricated that articulate in former EPA Administrator Scott Pruitt's confirmation hearing in 2017. "My constituents tell me the EPA is out to become them rather than work with them and there is a huge lack of trust between many of my constituents and the EPA," she said. "If nosotros take a look specifically at the WOTUS rule, Iowans truly feel that the EPA ignored their comments and concerns, threw them under the rug and then just moved forward."

However the backlash started, it took on a life of its own. Trump began citing the water rule on the campaign trail as an example of EPA overreach, earning cheers from rural audiences. In signing his executive order in March, he called it a "destructive and horrible rule."

Why it will be difficult — but not impossible — for the EPA to undo the Obama-era WOTUS rule completely

Former EPA Administrator Scott Pruitt couldn't unto the Clean Water Rule on his own, but he could put it on hold.

Aaron P. Bernstein/Getty Images

Pruitt delayed the Obama WOTUS dominion'due south implementation for two years, buying the EPA time to come up with an alternative.

But implementing a new definition for WOTUS requires proposing a new rule that's supported past all-encompassing scientific and legal arguments, opening upwardly the proposal for public comments, responding to those comments, and then defending the final dominion in court as a superior approach. This could take years.

And much of the ambiguity around which waterways deserve Clean Water Human activity protection notwithstanding holds even if you repeal the Obama dominion. Which wetlands are covered? How exercise you lot deal with streams that menstruum part of the yr? How do you interpret that mess of a Supreme Court conclusion in 2006?

In his executive order, Trump asked the EPA to consider Scalia's opinion in Rapanos, which extended protection to wetlands only if they had a "continuous surface connection" to navigable waterways and extended protection to streams only if they were "relatively permanent." So information technology'southward not surprising that acting EPA Ambassador Wheeler's replacement rule would encompass far fewer waterways — leaving out, for instance, many of the 60 pct of streams that don't period twelvemonth-circular.

Environmental groups say that's a problem. Devine argues that polluters could accept reward of a weaker rule with less sure protection for streams and waterways. As long equally at that place'due south ambivalence about where the Clean Water Act applies, it would exist harder for denizen groups or the Department of Justice to bring a case confronting companies dumping chemicals or other pollutants into smaller bodies of water upstream.

"Without this dominion, enforcement has been unpredictable," Devine says. "The EPA has mainly been focused on big rivers and lakes so that they wouldn't have to litigate to the ends of the earth about whether the Clean Water Human action practical to waters upstream. Just if yous tin can but regulate the biggest rivers and lakes — and the pollution problem is much farther upstream — then y'all're not effectively protecting the receiving water or the watershed."

Nonetheless, it's not articulate that the EPA can scale back the water dominion significantly. Federal courts have typically embraced Kennedy's more than expansive interpretation of the Clean H2o Act rather than Scalia's, and any rollback of Obama'south rule would nevertheless leave enough of legal gray areas where the courts will need to decide on a case-by-instance basis whether the Clean Water Deed applies. "It'due south going to be incredibly complex to effigy this out," says Richard Revesz, a professor of environmental law at New York University.

Further reading:

• Repealing the clean water dominion is only pace one for Trump. He's also targeting Obama'southward signature climate policy, the Clean Power Plan. Read here for more on how he might exercise that.
• The EPA is also rolling back restrictions on major sources of toxic air pollution.

Source: https://www.vox.com/energy-and-environment/2017/2/28/14761236/wotus-waters-united-states-rule-trump

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