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WOTUS to SCOTUS?

New water rule drains wetlands protections

Wednesday, January 29, 2020

The U.S. Environmental Protection Agency finalized the Navigable Waters Protection Rule, narrowing the scope of waters subject to federal regulation under the Clean Water Act. The new rule replaces the 2015 Clean Water Rule’s definition of “Waters of the United States” (WOTUS), which was repealed by the Trump administration last fall.

In a decision hailed by ranchers and landowners, EPA Administrator Andrew Wheeler and Assistant Secretary of the Army for Civil Works R.D. James announced the new restrictions end decades of uncertainty over where federal jurisdiction begins and ends under the Clean Water Act.

EPA’s independent board of science advisers, many of whom were appointed by President Trump, condemned the agency for ignoring important research and the panel’s own advice as the agency scales back federal protections of the nation’s waterways.

The revised definition identifies four categories of waters that are federally regulated under the Clean Water Act that include navigable waters and the core tributary systems that flow into those waters. The rule also details what waters are not subject to federal control, including streams and gullies that only contain water in direct response to stormwater; groundwater; many ditches, including most farm and roadside ditches; farm and stock watering ponds; and waste treatment systems.

“EPA and the Army are providing much-needed regulatory certainty and predictability for American farmers, landowners and businesses to support the economy and accelerate critical infrastructure projects,” Wheeler said. “After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided.”

“Having farmed American land myself for decades, I have personally experienced the confusion regarding implementation of the scope of the Clean Water Act,” James added. “This rule eliminates federal overreach and strikes the proper balance between federal protection of our nation’s waters and state autonomy over their aquatic resources. This will ensure that land use decisions are not improperly constrained, which will enable our farmers to continue feeding our nation and the world, and our businesses to continue thriving.”

“The agencies erred in ignoring their own science on how waters, including wetlands, are connected to downstream waters,” the Washington Department of Ecology and other state agencies concerned with water quality and wildlife noted in comments on the proposed changes. “The agencies did not give sufficient scientific rationale to support their drastic change in the definition of which waters and wetlands are WOTUS.”

Others were also critical of the new rule, saying it will drastically reduce the federal government’s ability to monitor and regulate high volumes of pollution into much of the nation’s waterways and called it an egregious corporate handout.

“Simply for the sake of corporate factory farm and fossil fuel profits, President Trump has stripped away the common-sense ability of the federal government to monitor and protect our nation’s precious waterways from reckless development and exploitation,” said Scott Edwards, director of Food & Water Justice Program, Food & Water Action. “From our critical wetlands to our mightiest rivers and lakes, virtually any body of water in America could be seriously harmed and forever destroyed by Trump’s unconscionable decision. But make no mistake: This fight is not over. We will pursue every conceivable avenue, including lawsuits in federal court, to ensure that this foolish, malicious environmental rollback will be overturned. After all, there is nothing more important to life in this country than clean water.”

“This will be the biggest loss of clean water protection the country has ever seen,” Southern Environmental Law Center lawyer Blan Holman told The New York Times. “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.”

According to the EPA, the final definition achieves the proper relationship between the federal government and states in managing land and water resources and said the rule respects the primary role of states and tribes in managing their own land and water resources. All states have their own protections for waters within their borders and many already regulate more broadly than the federal government.

“Depending on the value of a newly characterized non-jurisdictional water, states may or may not choose to regulate that water and the compliance costs and environmental benefits of its regulation could increase or decrease, respectively,” the EPA wrote. “In either case, however, net benefits would increase, assuming that a state can more efficiently allocate resources towards environmental protection due to local knowledge of amenities and constituent preferences.”

Not all states agree that the Obama-era rule violated the principle of federalism—the cooperative relationship between the federal government and the states. Washington joined 23 states to continue support for the 2015 WOTUS definition.

Governor Jay Inslee blasted the new rule in a statement:

“This unprecedented rule will destroy more clean water protections than any other single act in American history. Without a doubt, it is among the most flagrant steps taken by the Trump administration in their all-out assault on the environment and the Clean Water Act,” Inslee said.

“Today’s action will decimate federal protections for more than half the nation’s wetlands and hundreds of thousands of miles of streams—protections that have been in place for decades, under both Republican and Democratic administrations. By allowing unfettered corporate pollution in our waters, EPA is willfully threatening the healthy waters necessary for thriving communities, fish and wildlife habitat, and our vital outdoor recreation economy,” Inslee said.

Inslee said he and other governors will explore responses to the new rule, including a possible legal challenge that could reach the U.S. Supreme Court.

“Washington will not stand idly by as the Trump administration eviscerates critical protections for our natural resources and everything we hold dear,” Inslee said. “We are reviewing the final rule now and exploring all options to protect clean water for all Washingtonians.”

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