The administration of President Donald Trump proposed yesterday (December 11) to reinterpret the Clean Water Act such that the legislation protects fewer streams and wetlands from pollution, E&E News reports.
It is doing this by redefining the Waters of the United States rule to exclude so-called ephemeral streams—those that flow only after rainfall and snowmelt—and wetlands not adjacent to or connected by surface water to other bodies of water. A 2015 rule announced by President Barack Obama specified that these ephemeral streams would be protected. Some of the wetlands in question were also protected under Obama and President George W. Bush. According to E&E, environmental groups argue for the protection of some ephemeral streams because when they do flow, they can carry pollution into other water sources.
“Saying you want clean water and excluding ephemeral streams is like saying you want universal health care, but you won’t cover anyone not named Ken,” Ken Kopocis, who led the Office of Water in Obama’s Environmental Protection Agency (EPA), tells E&E. “It’s a start, but it won’t get you what you want.”
Jessica Kao, who earlier this year left her position as the EPA’s lead Clean Water Act enforcement attorney in the Southwest, tells the Los Angeles Times that this move would allow businesses to avoid warning the public about the water-quality hazards of their projects. “It will be easier to pollute and fill these streams,” she says. “And years later, we will deal with the consequences.”
“The Trump administration has just given a big Christmas gift to polluters,” Bob Irvin, president of the American Rivers environmental nonprofit, tells the Associated Press. “Americans all over the country are concerned about the safety of their drinking water—this is not the time to be rolling back protections.”
Industry, farming, and construction groups praise the rollback. For example, Randy Noel, chairman of the National Association of Home Builders, tells NPR that the change will make it easier for developers to build new projects. In the past, he says, it was hard to know which wetlands were protected. Noel says that he expects the new definition to clarify matters. “As a home builder, I’m pretty excited about it because we hadn’t had any lots to build on,” Noel comments.
The Clean Water Act, which dates back to 1948 but was rewritten in 1972, aims to prevent water pollution. It requires people or companies wishing to discharge waste or take actions that could affect the health of bodies of water covered by the act to acquire permits to do so. In the early 2000s, Supreme Court decisions, including a 2006 opinion by the late Justice Antonin Scalia, cast the status of ephemeral streams into doubt, but Obama’s 2015 “Waters of the United States” rule specifically protected them. Trump campaigned on the premise of rolling back this rule and, in 2017, made an executive order that set in motion the process of rewriting it.
The Trump administration has claimed not to know how many water bodies this change would affect. “If you see percentages of water features that are claimed to be in, or reductions, there really isn’t the data to support those statistics,” EPA Office of Water Chief Dave Ross told reporters on Monday, according to E&E. “No one has that data.”
Yet the energy and environmental publication also reports that a 2017 slideshow prepared by Army Corps staff and shared with EPA employees, which E&E obtained through a Freedom of Information Act request, contains those very data. The slideshow says that 18 percent of streams would be excluded and 51 percent of wetlands would not be protected under the new definition.
EPA spokeswoman Molly Block responded to an E&E question about the 2017 slides by saying that “the datasets are not robust enough to accurately or precisely depict federally regulated waters.”
Once the proposal is printed in The Federal Register, there will be a 60-day comment period before the issuing of a final rule. That rule is likely to face legal challenges from environmental groups, according to E&E.