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Summary

In 1972, the Environmental Protection Agency (EPA) under the Nixon administration, revised the existing Federal Water Pollution Control Act (FWPCA) into what is now called the Clean Water Act (CWA). Since its creation, the CWA has formed the basic structure for regulating the discharge of pollutants into United States waters as well as the quality standards for surface waters. More specifically, the CWA “made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained” (epa.gov). In 2015 under the Obama administration, the CWA was expanded upon with the EPA’s “Waters of the United States” regulation. This new regulation expanded the jurisdiction of the CWA to protect smaller wetlands and streams “that run intermittently or temporarily underground” (epa.gov).

These regulations were created to keep harmful levels of pollutants such as fertilizers, pesticides and industrial chemicals out of all bodies of water that will eventually end up in larger water systems used by the American people, including drinking water supplies. They also protect many wetlands from being destroyed or filled in for development. Landowners along these protected bodies of water must acquire a permit for certain land uses, industries and management practices. These cases are analyzed and permits issued on a case-by-case basis by the EPA’s National Pollutant Discharge Elimination System (NPDES) permit program. The analysis and permitting process typically takes anywhere from 14-320 days to complete. In general, if all application materials and documents are submitted, an individual NPDES permit can take around 180 days to process.

On January 23, 2020 a joint committee from the EPA and U.S. Army Corps of Engineers, under the Trump administration, released the “Navigable Waters Protection Rule” (NWPR) to replace the 2015 “Waters of the United States” regulation and further roll back and redefine important elements of the 1972 Clean Water Act. The new rule removes CWA jurisdiction from all bodies of water deemed protected by Obama’s “Waters of the United States” regulation. Under the new NWPR, these bodies of water have been reorganized by the Trump administration as protected or not protected by CWA assessments and permits:

Protected:

  • Territorial Seas and traditional navigable waters
  • Perennial and intermittent tributaries to those waters
  • Certain lakes, ponds, and impoundments
  • Wetlands adjacent to jurisdictional waters

Not Protected:

  • Features that only contain water in direct response to rainfall
  • Groundwater
  • Many ditches
  • Prior converted cropland
  • Waste treatment systems

According to the new rule, landowners no longer require case-by-case permits for discharging pollutants into or developing on or along the bodies of water listed under “Not Protected.” Furthermore, the NWPR has redefined elements of the original Clean Water Act. “Adjacent wetlands” has been redefined to mean wetlands that directly abut or have regular surface water exchange with jurisdictional waters, directly or indirectly. And, a “typical year” has been redefined so that EPA analyses for determining whether a body of water should be protected or not, may only utilize data collected in times that are not too wet or too dry. Also, the rule now merges the previously two categories of “jurisdictional ditches” and “impoundments” into one single category.

The Trump Administration’s “Navigable Waters Protection Rule” has been informed by over 6,000 recommendations and 620,000 public comments on the proposal. A “Navigable Waters Protection Rule” Fact Sheet can be found on EPA.gov and a public outreach opportunity will be provided on February 13, 2020 via a public webcast of the EPA’s and U.S. Army Corps’ explanation of the new final rule.

Analysis

The new “Navigable Waters Protection Rule” has drawn a mix of criticism and praise. Some, including Karen Harbert, Chief Executive Officer of the American Gas Association and Andrew Wheeler, EPA Administrator, believe the new rule is a victory for farmers and home builders, by limiting federal oversight and bringing the jurisdictional power back to the landowners and state governments. Harbert argues the new rule will “Protect our rivers, streams and lakes without stifling construction or important infrastructure.” Mr Wheeler proclaims the new rule “respects the limited powers that the executive branch has been given under the Constitution and the Clean Water Act to protect navigable waters.” Andrew Wheeler was nominated by President Trump in 2017 and 2018 as Deputy Administrator of the EPA, and previously worked at Faegre Baker Daniels Law Firm, representing coal magnate Robert E. Murray and lobbying against the Obama Administration’s environmental regulations. He has openly criticized the placing of limits on greenhouse gas emissions and the Intergovernmental Panel on Climate Change.

Many others, however, believe the new rule to be irresponsible, short-sighted and contrary to science-based recommendations. Blan Holman, lawyer at the Southern Environmental Law Center believes the new rule to be a dangerous reversal of long established clean water regulations. He says, “This puts drinking water for millions of Americans at risk of contamination from unregulated pollution. This is not just undoing the Obama rule. This is stripping away protections that were put in place in the ‘70s and ‘80s that Americans have relied on for their health.” The EPA’s Scientific Advisory Board agrees. The panel of 41 scientists, many chosen by the Trump administration, say that the new rule “neglects established science.” Adding that it’s “failing to acknowledge watershed systems” and that there is “no scientific justification” for removing protections for smaller and seasonal bodies of water, because pollutants in these smaller bodies still reach our larger water systems. In fact, according to Thomas Tafoya, a Colorado based member of Green Latinos, says 90% of the supply streams that feed the Colorado River only run after rainfall and snow melt, and thus, will no longer be protected under the new rule. “This rollback will affect almost every single stream that flows into the Colorado River,” says Tafoya, and could harm the Colorado River water quality, which supplies water to 17 western states. EPA Administrator Wheeler also claims that the new rule’s revisions are meant to create a simpler outline for which bodies of water are under the jurisdiction of the Clean Water Act and which are not. However, experts say that the definitions made in the new rule are actually so general and so far from established scientific evidence, that farmers and landowners are more likely to have to seek consultation for determining the jurisdiction their lands and adjacent waters fall under. This will cost farmers and landowners more money and headache, contrary to Wheeler’s claims.

According to an article in the New York Times by Coral Davenport, “Water management experts” say that under the new rule, millions of acres of wetlands will be open to pollution and/or destruction. Wetlands play a key role in filtering surface waters, protecting against floods, and providing wildlife habitat. The compromise of these watershed systems will lead to chemicals and pollutants infiltrating smaller headland waters and eventually larger bodies of water that the American people rely on. 16 State Attorneys General, including Lititia James of New York, are suing Trump’s EPA and Army Corps, arguing that the rule is not legally sound. Addressing this, Professor of Environmental Law at the University of Vermont Law School, Patrick Parenteau states that “The legal standing all has to do with whether you have a rational basis for what you’re doing. And when you have experts saying you’re not adhering to the science, that’s not rational, it’s arbitrary.” Environmental activism groups Earthjustice and The Environmental Working Group both vow to challenge the new rule.

 

Resistance Resources

  • https://earthjustice.org – EarthJustice; Nonprofit public interest environmental law organization, dedicated to “protect people’s health, to preserve magnificent places and wildlife, to advance clean energy, and to combat climate change” (earthjustice.org).
  • https://www.ewg.org – The Environmental Working Group; Nonprofit organization specializing in research and advocacy of agricultural subsidies, toxic chemicals, drinking water pollutants, and corporate accountability.
  • https://alabamarivers.org – “Alabama Rivers Alliance is a statewide network of groups working to protect and restore all of Alabama’s water resources through building partnerships, empowering citizens, and advocating for sound water policy and its enforcement” (Alabamarivers.org).
  • https://blackwarriorriver.org – Black Warrior Riverkeeper; “A citizen-based nonprofit organization dedicated to promoting clean water for the sake of public health, recreation, and wildlife habitat throughout…the Black Warrior River watershed” (Blackwarriorriver.org).
  • https://www.conservationalabama.org – Conservation Alabama; “ensuring our decision-makers at all levels of government work to protect the people and places we all love” (conservationalabama.org).
  • https://www.southernenvironment.org – Southern Environmental Law Center; Nonprofit organization using the power of law to protect clean air, clean drinking water and healthy living environments.

Learn More:

“NYS Attorney General.” NYS Attorney General, 20 Dec. 2019, https://ag.ny.gov/press-release/2019/ag-james-leads-coalition-suing-over-trumps-repeal-clean-water-rule.

Black, Hank. “Environmental Groups Protest New Waters of the US Rule.” WBHM News, 24 Jan. 2020, https://WBHM.org/2020/environmental-groups-protest-new-waters-of-the-us-rule

Carson, Brent, et al. “Navigable Waters Protection Rule Substantially Narrows the Scope of Waterbodies Subject to Regulation Under the Clean Water Act.” The National Law Review, 25 Jan. 2020.

Davenport, Coral. “Trump Removes Pollution Controls on Streams and Wetlands.” The New York Times , 22 Jan. 2020, https://www.nytimes.com/2020/01/22/climate/trump-environment-water.html.

EPA, Environmental Protection Agency, www.epa.gov/.

Richards, Ryan. “Debunking The Trump Administration’s New Water Rule.” Center for American Progress, 27 Mar. 2019, https://www.americanprogress.org/issues/green/news/2019/03/27/467697/debunking-trump-administrations-new-water-rule/.

Photo by Jong Marshes

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