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By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She now spends much of her time in Asia and is currently researching a book about textile artisans. She also writes regularly about legal, political economy, and regulatory topics for various consulting clients and publications, as well as scribbles occasional travel pieces for The National.
The Environmental Protection Agency (EPA), Department of Army, and Army Corps of Engineers yesterday announced “they are proposing a rule to rescind the Clean Water Rule– adopted in 2015– by re-codifying the regulatory text that existed prior to 2015 defining “waters of the United States” or WOTUS,” according to this EPA press release from yesterday.
A February 28 Trump executive order kicked off the process for reconsidering exactly to which waters the EPA’s clean water regulatory policy applies. That order said:
It is in the national interest to ensure that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the States under the Constitution.
In order to meet these objectives, the EPA press release announces that the three agencies “intend to follow an expeditious, two-step process that will provide certainty across the country.” Exactly what the agencies propose to do is spelled out in this 42-page document.
As the first step in this rule-making process, the proposed new Trump administration rule would recodify the identical regulatory text that existed prior to adoption of the 2015 Clean Water Rule in 2015 and that currently remains in place following an October 2015 decision by the U.S. Court of Appeals to stay the 2015 rule. So, the press release explains, that the new rule-making, “when final, will not change current practice with respect to how the existing definition applies.”
The second-step in the rule-making– upon which the agencies have already embarked– will be “a re-evaluation and revision of the definition of “waters of the United States” in accordance with the [February] Executive Order,” again according to the press release.
More detailed information about the history of the Clean Water Rule, may be found at this EPA web portal.
Clean Water Rule
The Clean Water Rule protects drinking water in the United States and is based on regulatory authority provided in the Clean Water Act of 1972. The recent rule-making process to define its scope and applicability has been unusually fraught, with debate entering on exactly what water sources are covered (which in itself is a confusing topic that has been the subject of multiple rounds of litigation over decades).
In 2015, the EPA extended protection to include streams, and some wetlands. According to this NPR report, Trump plans to ditch Obama’s protection for small wetlands and waterways-– well worth reading, by the way, for a quick introduction to the issue, written in accessible plain English:
In 2015, Obama Administration tried once and for all to define exactly what would be regulated under the federal Clean Water Act. After several years of research, including analysis of 1,200 peer-reviewed studies, the EPA defined a tributary as having a “bed, banks and ordinary high water mark,” which flowed downstream. It defined “adjacent wetlands and waters” as those “within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark” to the regulated tributaries or waterways.
And it included protection for isolated wetlands, like Prairie potholes out west, coastal prairie wetlands in Texas and what’s known locally as Delmarva bays. These are isolated, small wet areas fed by groundwater and seasonal rain. There are more than one thousand of these wetlands in Delaware, where they serve as nurseries for frogs and salamanders.
Yet various business interests: fossil fuel companies, big agriculture, chemical producers, home builders, mining companies, and real estate developers, to name just some– objected to the broadened definition.
As is frequently the case with any rule-making that gores any economic interests, extensive litigation followed, filed by the usual business interest group subjects– e.g., the American Farm Bureau, the United States Chamber of Commerce, and dozens of other business associations–according to this report in yesterday’s Wall Street Journal. In his former role as Oklahoma state attorney general, Trump’s newly installed EPA administrator, Scott Pruitt also filed litigation against the agency.
Status Quo Will Remain: No Protection
The result of this legal manoeuvring: the widened WOTUS rule has yet to be enforced– due to the Sixth Circuit’s stay noted above– and the status quo–less extensive regulation– therefore remains in place. According to a report in yesterday’s Washington Post, “Pruitt said that the agency would “provide clarity” by “withdrawing” the rule and reverting standards to those adopted in 2008.”
Which is perhaps very good news indeed if you’re a member of one of those interests that benefits from the current status quo– but isn’t so welcome if pollution is contaminating your drinking water or, in the case of wildlife, destroying your habitat.
Earlier this year, I wondered why Democrats didn’t target the worst of Trump’s proposed Cabinet picks, and mount any serious takedown effort. Pruitt would have topped my list of most dangerous appointees.
Although he earlier pledged to recuse himself “from working on active litigation related to the rule’’ according to the Washington Post account cited above — whatever that lawyerly parsing may be taken to mean– we know how bogus these putative “recusals” prove to be in practice.
Pruitt is proving to be skilled and adept at implementing an anti-environmental agenda. He knows the territory, and is using his full powers as EPA administrator to translate that vision into legal reality.
States Ride to the Rescue?
Much of the commentary on yesterday’s announcement has made a fairly glib and obvious comparison between this latest attempt to roll back the previous administration’s environmental agenda and Trump’s decision earlier this month to pull out of the Paris accord on climate change.
There’s one serious difference that I can see– and this, a depressing one. Trump’s Paris decision was opposed by many business interests. Some of these sought to convince Trump to stay the course on the accord. Green companies wish to move full speed ahead on an anti-climate change agenda as they expect to benefit directly. And still other activist investors are pressuring fossil fuel and other companies to disclose their exposure to climate change– including regulation– and come clean on the mitigating steps they’re undertaking. These are just some of the business interests that oppose the Trump climate change policy.
In addition, many states and cities are undertaking their own climate change initiatives– and since California is involved, as has been the case with clean air and fuel efficiency standards, those efforts may evolve to be de facto national standards.
By contrast, the business alignment on WOTUS is almost all in favor of rollback.
Now, in the case of clean water regulation, trashing the tougher federal rule will leave many tougher state water protection statutes still standing. But the consequence of this pullback may be ultimately to weaken individual state initiatives, as I don’t see state water policies becoming de facto national standards here.
So, permit me to quote from the NPR account again:
Even when Trump gets rid of WOTUS, about 20 states across the country would not be impacted because they have state laws that are more stringent than the federal rules, including Pennsylvania. But that’s not enough protection for some.
David Kinney is mid-Atlantic policy director for Trout Unlimited, a conservation organization that supports WOTUS. Kinney says those ephemeral or intermittent streams are important nurseries for trout. And he says although Pennsylvania has done a good job protecting native trout streams, loss of federal protections could mean the state backtracking on its Clean Streams law.
This latest Trump initiative is not good news for those who care about clean water, the environment, or pristine habitat.