Trump administration rolls back Obama clean water rule

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The Trump administration unveiled a rewrite of an Obama-era clean water rule Thursday, setting a narrower definition for which waters are covered under federal protections.

The new rule, which will replace the Obama administration waters of the U.S., or WOTUS, rule, is meant to fulfill one of President Trump’s major energy and environmental priorities. Trump, in recent remarks to the American Farm Bureau, called the WOTUS rule “one of the most ridiculous regulations of all,” saying it “gave bureaucrats virtually unlimited authority to regulate stock tanks, drainage ditches, and isolated ponds as navigable waterways and navigable water.”

Under the Trump administration’s regulation, issued Thursday by the Environmental Protection Agency and the Army Corps of Engineers, four types of waters are covered by federal protections: traditional navigable waters, such as seas and rivers; streams that flow into traditional navigable waters; wetlands right next to covered waters; and certain lakes, ponds, and impoundments.

EPA Administrator Andrew Wheeler said the new rule — which they’ve dubbed the “Navigable Waters Protection Rule” — offers clarity to farmers, ranchers, developers, manufacturers, and other land owners, so they don’t have to spend “tens of thousands of dollars on attorneys and consultants to determine whether waters on their own land fall under the control of the federal government.”

The narrower definition would exclude some waters that were covered under the Obama-era rule, including wetlands connected to covered waters through groundwater, many ditches, and ephemeral streams, or streams that flow with rain water.

“We’ll see more clarity coming out of this final rule,” said Jake Tyner, a manager and associate policy counsel for the U.S. Chamber of Commerce’s Global Energy Institute.

Businesses, particularly small business owners, “will be able to look at a water and be able to determine whether it is navigable or not,” Tyner said, adding the Obama administration’s rule had led to confusion that could require businesses to hire consultants and lawyers “to really get into the weeds on this.”

Environmentalists, however, say the Trump administration’s rule goes further than rolling back the Obama version of regulation, and in fact excludes waters that have been covered by federal agencies for decades.

“It’s a real departure from what we’ve been doing for decades now,” said Blan Holman, senior attorney of the Southern Environmental Law Center’s Charleston office and leader of its Clean Water Defense Initiative.

“There’s been strong economic growth under the Clean Water Act for decades, and this is just a gratuitous slashing of core protections to protect special interests,” he added.

Environmentalists and former EPA officials have also raised concerns that many waters excluded from the Trump administration definition would now lack environmental protections because many states won’t be able to step in and regulate.

For example, 13 states have direct prohibitions barring them from issuing water quality regulations stricter than federal limits, according to Betsy Southerland, former director of science and technology in the EPA’s Office of Water until 2017. Another 23 states would have to jump through regulatory or legislative hoops to implement stronger protections, she added.

Without a national floor of federal protections, states won’t have any incentive to issue stronger protections, Holman said, adding that many state environment agencies are already underfunded.

“It will be a one-way ratchet” toward less protection, he said. Holman added part of what made the Obama-era program so strong was it alleviated states from dealing with political pressure to weaken water quality protections, because they had to implement the federal standards.

A senior EPA official, though, dismissed criticism that a water would go unprotected if it isn’t regulated federally.

Today’s regulatory landscape isn’t the same as the 1970s and 1980s because “states have robust environmental programs,” the official told reporters on a press call Thursday. States “value and cherish their resources.”

The official also pushed back on critiques from members of the EPA’s Science Advisory Board, which issued a draft report late last year suggesting the Trump administration’s proposal didn’t have a “fully supportable scientific basis.” The EPA official said the agencies had to follow the law, which is specific about which waters are covered federally.

“This isn’t about whether it’s an important water body,” the official said, noting all water bodies are important. “This is about what waters Congress intended for the agencies to regulate.”

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