Water wrangling: Latest moves stoke controversy
Rule rollback: Protecting wetlands, small streams was deemed overreach
The Trump administration laid out plans Tuesday to roll back Obama-era rules protecting isolated streams and wetlands from industrial pollution, a move that conservation groups said could harm creeks and impact drinking water in the Bay Area and throughout California.
The move by the Environmental Protection Agency to roll back the 2015 Waters of the U.S. rule, known as WOTUS, was hailed by farmers and industry, which have long sought to rewrite the rules.
Environmental groups, however, denounced the proposal as an attempt by the Trump administration to dodge the Clean Water Act and open up thousands of miles of streams and wetlands
throughout the U.S. to development, including pipeline construction.
“This rolls back, significantly, regulations protecting wetlands, intermittent streams and headwaters, where streams start,” said Erica Maharg, the managing attorney for San Francisco Baykeeper, a nonprofit dedicated to preserving the bay ecosystem. “I think what it does is ignore the science of how the smaller bodies and wetlands really impact the larger rivers, lakes, bays and the ocean. Generally, it means more pollution is going to be in the system.”
The proposed regulations, the fulfillment of a promise by President Trump to rescind President Barack Obama’s water regulations, would exempt from the Clean Water Act many seasonal creek beds and marshlands that aren’t directly connected to navigable waterways.
The Trump administration has repeatedly claimed that the Obama rule was a thinly veiled attempt to regulate private property and force farmers to obtain EPA and Army Corps of Engineers permits for their stock ponds, watering holes and irrigation canals, a claim that supporters of the 2015 rules reject.
“The Obama-era safeguards covered fewer waters than had been protected during the Reagan and George H.W. Bush administrations,” said Jon Devine, director of federal water policy for the Natural Resources Defense Council. “(The rule) preserved and expanded exemptions for agricultural discharges and for features such as stock ponds and irrigation ditches, but industry keeps regurgitating this tired complaint.”
Andrew Wheeler, the acting administrator of the Environmental Protection Agency under Trump, nevertheless repeated the claims of government overreach when he announced the revisions, accusing the Obama administration of putting “power in the hands of the federal government over land owners.”
“Property owners should be able to stand on their property and tell whether the water on their property is federal or not without having to hire outside professionals,” Wheeler said.
The new WOTUS rule, according to some estimates, would remove protections for as many as 60 percent of the streams in California and other states, a notion that Wheeler dismissed.
“California already has water protections in place that are stricter than the federal government’s, so nothing will change,” he said, adding that there are no maps or counts of all the waterways affected.
The proposed rule, which will now go through a 60-day public comment period, maintains federal jurisdiction over navigable waters and their tributaries, Wheeler said. Tidal water, lakes, ponds and wetlands adjacent to or connected to larger bodies of water would also continue to be under EPA jurisdiction.
Exempted from the Clean Water Act under the Trump plan would be ephemeral streams, essentially dry creek beds that occasionally flow during rainy seasons. Isolated wetlands disconnected from major bodies of water — a 1,000year flood plain, for instance — would also be exempt. Flooded rice or cranberry fields, groundwater, farming ditches, quarries, gravel pits, previously converted cropland, storm control and waste treatment systems would also be free of federal environmental regulations, Wheeler said.
The Clean Water Act was established in 1972, giving the federal government authority to regulate pollution discharges into waterways, but disputes have arisen, especially over how much regulation could be placed on ponds, irrigation ditches and small seasonal creeks on private property.
The U.S. Supreme Court was split in rulings in 2001 and 2006 over whether the law applied to intermittent streams and isolated wetlands. Obama’s Clean Water Rule was an attempt to clarify which waterways could be regulated, but the ruling was somewhat vague about small tributaries, and that flaw has since become a political football.
Trump’s former EPA administrator, Scott Pruitt, tried to suspend the WOTUS rule earlier this year, but the effort was blocked by a federal judge who ruled that the administration failed to seek public comment.
Dave Ross, the assistant EPA administrator for water, said the newest manifestation of the rule was designed for “simplicity, clarity, regulatory certainty and a recognition that the federal government is of limited authority.”
“Our goal is to provide very clear categories of what’s in and what’s out,” he said.
Industry and agribusiness expressed support Tuesday for the revisions.
“The existing WOTUS rule has produced little beyond confusion and litigation, and has undermined farmers’ efforts to work cooperatively with government agencies to protect water and land,” said Jamie Johansson, the president of the California Farm Bureau Federation. “Farmers want to do the right thing for the land, water and other natural resources under their care . ... We hope the new clean water rule will provide the clarity farmers and ranchers need.”
House Democratic leader Nancy Pelosi said clarity is not what Trump's “dirty water rule” is going to deliver.
“Yet again, this administration has sold out our children to further enrich its big corporate polluter friends,” Pelosi said in a statement. “The health of American families in every corner of the country is threatened by a corrupt White House and complicit Congress that have pushed reckless executive orders to undermine clean air and clean water, given dirty power plants the green light to pollute our communities and installed a coal lobbyist at the head of the EPA.”
Environmentalists charge that the proposed rule is a cynical effort by Trump to rescind Clean Water Act prohibitions against filling wetlands and dumping in creek beds that have existed for 46 years.
“These are the capillaries of the landscape. They help move nutrients downstream. They can be important food sources for fish, and they have a profound effect on drinking water,” said Chris Wood, the president of Trout Unlimited. “If you take away the protections of the Clean Water Act, suddenly those dry creek beds might become a place to put animal waste or store gas tanks. Then, when you get a rain event, the pollution is transported downstream.”
Robert Weissman, the president of Public Citizen, a nonprofit consumer rights advocacy group in Washington, D.C., said the rollback will mostly benefit Trump and other owners of golf courses.
“Trump is aiding his industry — and his own businesses — by undercutting vital protections for Americans’ drinking water and waterways,” Weissman said in a statement. “Golf course owners — including Trump — shouldn’t be able to pollute the nation’s water with pesticides and fertilizers, as a rollback would in many cases allow them to do.”