Roll­back of clean wa­ter rules un­veiled

En­vi­ron­men­tal groups and many states are ex­pected to chal­lenge Trump’s pro­posal.

Los Angeles Times - - THE NATION - By Evan Halper

WASH­ING­TON — The Trump ad­min­is­tra­tion un­veiled its plan Tues­day for a ma­jor roll­back of the Clean Wa­ter Act, a blue­print drawn up at the be­hest of farm groups, real es­tate de­vel­op­ers and other busi­ness in­ter­ests that would end fed­eral pro­tec­tions on thou­sands of miles of streams and wet­lands.

The pro­posal has big im­pli­ca­tions for Cal­i­for­nia and other arid West­ern states, where many of the sea­sonal streams and wet­lands that are a foun­da­tion of drink­ing wa­ter sup­plies and sen­si­tive ecosys­tems would lose fed­eral pro­tec­tion.

Act­ing En­vi­ron­men­tal Pro­tec­tion Agency Ad­min­is­tra­tor An­drew Wheeler said the Obama-era rule that put those wa­ters un­der the pro­tec­tion of the Clean Wa­ter Act “fur­ther ex­panded Wash­ing­ton’s reach into pri­vately owned lands.”

“They claimed it was in the in­ter­est of wa­ter qual­ity, but it was re­ally about power,” Wheeler said. “Power in the hands of the fed­eral govern­ment over landown­ers.”

Stud­ies con­ducted by the Obama-era EPA sug­gest that as many as two-thirds of Cal­i­for­nia’s in­land fresh­wa­ter streams fall into cat­e­gories that would be at risk of los­ing pro­tec­tion un­der the Trump ad­min­is­tra­tion plan. Wheeler dis­missed those stud­ies as sci­en­tif­i­cally flawed, but his agency said it could not of­fer an ac­cu­rate es­ti­mate of how much fed­eral pro­tec­tion would be di­min­ished in the state.

“Cal­i­for­nia al­ready has wa­ter pro­tec­tions in place that are stricter than the fed­eral govern­ment’s, so noth­ing is go­ing to change for the Cal­i­for­nia wa­ters,” he said.

For­mer EPA reg­u­la­tors drew a starkly con­trast­ing pic­ture, say­ing state agen­cies do not have the re­sources or ex­per­tise to back­fill all the work the EPA would stop do­ing un­der Pres­i­dent Trump’s pro­posed rule.

“The ram­i­fi­ca­tions could be huge,” said Jes­sica Kao, who this year left her po­si­tion as the EPA’s lead Clean Wa­ter Act en­force­ment at­tor­ney in the South­west.

“You will def­i­nitely see more de­vel­op­ment projects out­side the purview of the Clean Wa­ter Act.”

The new rules would en­able many pol­lut­ing projects to skirt fed­eral en­vi­ron­men­tal re­views and al­low com­pa­nies build­ing struc­tures as di­verse as oil pipe­lines and res­i­den­tial sub­di­vi­sions to avoid warn­ing the pub­lic of po­ten­tial wa­ter-qual­ity haz­ards they cre­ate, she said.

“It will be eas­ier to pol­lute and fill these streams,” she said. “And years later, we will deal with the con­se­quences.”

The pro­posal, which now moves into a 60-day pub­lic com­ment pe­riod, is cer­tain to draw le­gal chal­lenges from en­vi­ron­men­tal groups and many states.

The fight marks the lat­est chap­ter in a decades­long strug­gle over the reach of the Clean Wa­ter Act. Agri­cul­ture busi­nesses, de­vel­op­ers, and oil and min­ing com­pa­nies say the ex­ist­ing rule has en­abled heavy-handed bu­reau­crats to im­pose hefty fines on them for dis­rupt­ing ditches and fill­ing wet­lands never meant to be reg­u­lated by the fed­eral govern­ment. Farm groups also worry that strict clean wa­ter reg­u­la­tions will limit their abil­ity to use pes­ti­cides and fer­til­iz­ers on fields that could drain into creeks and swamps.

The Obama EPA in­ves­ti­gated those con­cerns while draft­ing the rule and found them to be lack­ing merit. It re­viewed hun­dreds of stud­ies in con­clud­ing that en­forc­ing the pro­tec­tions widely on wet­lands and sea­sonal streams would pro­vide hun­dreds of mil­lions of dol­lars in ben­e­fits to the econ­omy. The Trump ad­min­is­tra­tion’s pro­posal dis­putes those ben­e­fits, con­clud­ing any eco­nomic boost to be gained from the Obama-era rule is eclipsed by its costs to landown­ers and busi­ness.

“I don’t know there is one sin­gle rule that has caused as much con­cern and frus­tra­tion,” said Sen. Lisa Murkowski (R-Alaska). “You needed this army of hy­drol­o­gists and en­gi­neers and lawyers just to fig­ure out whether your project could even be­gin.”

Many states, par­tic­u­larly those with Repub­li­can gov­ern­ments, had joined in­dus­try in fight­ing the Oba­maera rules, call­ing them an un­wel­come and un­nec­es­sary in­tru­sion.

Wheeler quoted a find­ing from the Mis­souri Farm Bureau that 95% of the land in that state could con­tain wa­ter sub­ject to the Oba­maera rule, which Wheeler said “put lo­cal land-use de­ci­sions in the hands of dis­tant, un­elected bu­reau­crats.”

Other states, in­clud­ing Cal­i­for­nia, have backed the Obama EPA’s rules.

Cal­i­for­nia Atty. Gen. Xavier Be­cerra re­peated the state’s po­si­tion Tues­day, say­ing in a mes­sage on Twit­ter that the state would “de­fend CA’s right to clean drink­ing wa­ter and pol­lu­tion-free streams and lakes.”

The Supreme Court has strug­gled to de­fine which wa­ters should be pro­tected un­der the Clean Wa­ter Act. A 2006 case re­sulted in mul­ti­ple opin­ions.

The Obama ad­min­is­tra­tion crafted its rule around the def­i­ni­tion of pro­tected wa­ters of­fered by Jus­tice An­thony M. Kennedy, who re­cently re­tired. But Trump, within a month of tak­ing of­fice, or­dered his ad­min­is­tra­tion to em­brace the far more nar­row def­i­ni­tion the late Jus­tice An­tonin Scalia pro­vided in his opin­ion.

Al­though the ad­min­is­tra­tion plan faces a tough le­gal fight, the Supreme Court’s shift in a more con­ser­va­tive di­rec­tion since the Clean Wa­ter Act was last heard there could give Trump and his aides an edge.

“It may very well be up­held if the ad­min­is­tra­tion does a good job of sub­stan­ti­at­ing its ap­proach,” said an email from Ann Navaro, a for­mer chief coun­sel of lit­i­ga­tion at the Army Corps of En­gi­neers.

But the court is of­ten loath to over­turn prece­dent, and many lower courts have al­ready em­braced the Kennedy opin­ion from a decade ago. At­tor­neys for en­vi­ron­men­tal groups are hope­ful that the scale of the ad­min­is­tra­tion’s planned roll­back will ul­ti­mately sink it in lit­i­ga­tion.

“They want to shrink the ju­ris­dic­tion of the Clean Wa­ter Act to a level we have not seen in decades,” said Blan Hol­man, man­ag­ing at­tor­ney at the South­ern En­vi­ron­men­tal Law Cen­ter. “They say they are do­ing some­thing that is con­sis­tent with the Supreme Court’s ear­lier rul­ing, but it is not.”

evan.halper@la­ Twit­ter: @evan­halper

Cliff Owen As­so­ci­ated Press

ACT­ING En­vi­ron­men­tal Pro­tec­tion Agency chief An­drew Wheeler said the pro­posal would not af­fect Cal­i­for­nia, but ex­perts dis­agreed, say­ing state agen­cies don’t have the re­sources to do what the EPA does.

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