By: Margaret Potter, Blog Editor
Enacted in 1972, the Clean Water Act (the “CWA”) has provided for the federal protection of the “waters of the United States” for over forty years.[1] Under the CWA, the federal government can regulate water quality standards and implement pollution control to protect the integrity of the nation’s waters for the benefit of its citizens and animals that depend on it.[2] As of January 23, 2020, the Environmental Protection Agency (the “EPA”) under the Trump Administration released its new regulation – the Navigable Waters Protection Rule- that significantly narrows what waters will continue to be considered “waters of the United States” under the CWA.[3] This regulation reverses Obama-era rules that broadened the scope of the CWA and made the definition of “waters of the United States” more expansive.[4] While many industries, such as farming and construction, have praised the Trump Administration’s Rule, many environmental advocacy groups see it as welcoming the pollution of the nation’s waters.[5]
In 2006, the Supreme Court of the United States’ decision in Rapanos v. United States left much confusion as to what waters were encompassed within the scope of the CWA.[6] Four conservative justices supported a narrow approach to federal jurisdiction whereas four liberal justices favored broader federal authority.[7] Although Justice Kennedy joined the conservative justices, he issued his own opinion that set a more inclusive standard giving federal protection to any streams and wetlands that had a “significant nexus” to navigable waters. In 2015, the Obama Administration sought to provide uniform clarity to federal agencies interpreting the CWA.[8] To achieve this, the administration enacted the Waters of the United States Rule which was designed to limit the pollution in 60% of the nation’s bodies of water thus protecting drinking water sources for one-third of the nation.[9] The Obama Administration consulted with the EPA, Army Corps of Engineers, and various environmental scientists in drafting its rule.[10] After this rule was enacted, many businesses saw this step as a “massive federal overreach” and within weeks 27 states sued the federal government to block its application.[11]
One of the most outspoken critics of the Obama-era rule was President Trump, who promised numerous times on the 2016 presidential campaign trail to enact regulation to reverse the previous administration’s rule.[12] Less than a month after taking office, President Trump ordered a review of the nation’s waterways, saying that although clean water is a “national interest” it must be balanced against “promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution.”[13] Federal courts since 2006 have used Justice Kennedy’s opinion in Rapanos as a guiding principle.[14] But while also ordering a review of the nation’s waterways, President Trump issued an executive order directing the EPA and the Army Corps of Engineers to use the conservative opinion in Rapanos to draft a new definition of “waters of the United States” for a new regulation.[15] In proposing the replacement regulation, President Trump promised, at an American Farm Bureau Federation event, to enact regulations that would “allow states to manage their water resources based on their own needs and what their farmers and ranchers want”.[16] Carrying out its promise, the Trump Administration enacted the Navigable Waters Protection Rule in January 2020.[17] Under this rule, ephemeral bodies of water –those bodies of water that form only after rainfall, or that flow only part of the year and dry up at other times – are no longer subject to federal protection under the CWA.[18] Included in this definition of ephemeral bodies of water are waste treatment systems, groundwater, and prior converted cropland, and farm watering ponds.[19] The Administrator of the EPA, Andrew Wheeler, said that this new rule means “farmers, property owners and businesses will spend less time and money determining whether they need a federal permit and more time building infrastructure.”[20] Industries such as agriculture, homebuilding, mining, and oil and gas industries have praised the Trump Administration’s rule.[21]
However, many have criticized this new rule, beginning with the EPA’s Science Advisory Board (the “SAB”) that consists of mostly Trump Administration appointed board members.[22] The 41-member SAB said the revised rule “decreased protection for our Nation’s waters and does not support the objective of restoring and maintaining the chemical physical and biological integrity of these waters.”[23] The SAB went on to state that the new rule lacks scientific justification, while potentially introducing new risks to human and environmental health.[24] Furthermore, the SAB expressed that the new rule does not provide the long term clarity that the administration promised it would.[25]
In addition to the EPA’s SAB, numerous environmental groups have criticized the environmental implications of the Trump Administration’s rule. Specifically, these critics contend that dry, western states will see the greatest impact of the new rule.[26] According to the EPA, as much as 94% of Arizona and 89% of Nevada’s waterways could lose federal protection under the CWA.[27] The Project Director with Amigos Bravos, a New Mexico based conservation group that focuses on water-related issues, has stated that although the ephemeral bodies of water may be smaller, they are important to bigger water systems.[28] For example, ephemeral bodies of water are essential to the integrity of the Rio Grande, which provides 300,000 citizens of New Mexico with drinking water.[29] In response, the Trump Administration has stated that the absence of federal regulation does not mean that a waterway is not protected because states can expand protections.[30]
Challenges to the Trump Administration’s rule have already commenced with the National Resources Defense Council’s (the “NRDC”) plans to sue the administration, arguing that the federal government has failed to consider the impact of this new rule on endangered species.[31] The NRDC argues that by enacting the rule, the administration violated the Endangered Species Act by failing to review how those protected animals would be affected under the new rule.[32] The NRDC is likely not to be the only organization challenging the new rule.
In conclusion, the Trump Administration sought to enact regulations that would balance the protection of the nation’s waters while also promoting economic growth. In comparing and contrasting the 2015 Obama Administration rule and the 2020 Trump Administration it can be seen that finding this desired balance is difficult. Furthermore, since the Trump Administration took office, more than 90 environmental rules and regulations have been rolled back.[33] However, several of these rollbacks were later reinstated as a result of legal challenges.[34] Following pending legal challenges, it will be determined, most likely by the courts, whether the Navigable Waters Protection Rule will move to the list of Trump Administration rollbacks that have been reinstated.
[1] 33 U.S.C. § 1251 et seq. (1972).
[2] Id.
[3] Lisa Friedman and Coral Davenport, Trump Administration Rolls Back Clean Water Protections, The New York Times, (September 12, 2019), https://www.nytimes.com/2019/09/12/climate/trump-administration-rolls-back-clean-water-protections.html.
[4] Id.
[5] Id.
[6] Annie Snider, Trump erodes water protections: 6 things to know, Politico, (January 23, 2020 1:22 PM EST), https://www.politico.com/news/2020/01/23/trump-epa-curbs-water-protections-102779.
[7] Id.
[8] Davenport & Friedman, supra note 3.
[9] Id.
[10] Rebecca Bowe, What the Trump Administration Is Doing To Your Water, EarthJustice, (January 23, 2020), https://earthjustice.org/blog/2019-october/what-the-trump-administration-is-doing-to-your-water.
[11] Scott Neuman and Colin Dwyer, Trump Administration Cuts Back Federal Protections For Streams And Wetlands, NPR, (January 23, 2020 10:37 AM ET), https://www.npr.org/2020/01/23/798809951/trump-administration-is-rolling-back-obama-era-protections-for-smaller-waterways.
[12] Snider, supra, note 6.
[13] Dwyer & Neuman, supra, note 11.
[14] Snider, supra, note 6.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Davenport & Friedman, supra note 3.
[21] Snider, supra note 6.
[22] Jeremy P. Jacobs, Science advisers slam EPA’s new stream and wetland protection rule, Science, (March 4, 2020 4:30 PM), https://www.sciencemag.org/news/2020/03/science-advisers-slam-epa-s-new-stream-and-wetland-protection-rule.
[23] Dwyer & Neuman, supra note 11.
[24] Jacobs, supra note 22.
[25] Id.
[26] Snider, supra note 6.
[27] Id.
[28] Dwyer & Neuman, supra note 11.
[29] Id.
[30] Snider, supra note 6.
[31] Rebecca Beitsch and Rachel Frazin, NRDC gears up to sue over Trump rollback of Obama water law, The Hill, (March 30, 2020 5:23 PM EDT), https://thehill.com/policy/energy-environment/490248-nrdc-gears-up-to-sue-over-trump-rollback-of-obama-water-law.
[32] Id.
[33] Nadja Popovich, Livia Albeck-Ripka, and Kendra Pierre-Louis, 95 Environmental Rules Being Rolled Back Under Trump, The New York Times, (December 21, 2019), https://www.nytimes.com/interactive/2019/climate/trump-environment-rollbacks.html.
[34] Id.
