The Trump administration will on Thursday repeal one of the Obama era’s most sweeping environmental rules — a set of pollution protections for small streams and wetlands that had riled up opposition from coal miners, home developers, farmers and oil and gas drillers.
The action creates instant doubts about the legal status of myriad seasonal or isolated wetlands and thousands of miles of waterways, including vast swaths of the arid West. And it clears the way for the Environmental Protection Agency to finish a follow-up regulation in the coming months that could leave most of the nation’s wetlands without any federal safeguards.
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EPA Administrator Andrew Wheeler is poised to sign off on the repeal at the D.C. headquarters of the National Association of Manufacturers, one of the industry groups that had opposed the Obama administration’s Waters of the U.S. rule. That 2015 regulation, also known as the Clean Water Rule, had cemented federal protections for headwater streams, Western rivers and nearby wetlands, in an effort to resolve questions raised by two muddled Supreme Court decisions.
Environmental groups vowed to challenge the rollback, arguing that it jeopardizes drinking water supplies for 117 million Americans.
Jon Devine, director of federal water policy for the Natural Resources Defense Council, defended the Obama administration rule in a statement, saying it “represented solid science and smart public policy.”
“The Trump administration’s wild-eyed attempts to reward polluters, however, knows no bounds, so it is repealing these important protections without regard for the law or sound science,” he said. “This unsubstantiated action is illegal and will certainly be challenged in court.”
Republican lawmakers and industry groups argue that the Obama-era rule represented a vast federal overreach that intruded upon states’ authority to regulate their own waterways.
“This action officially ends an egregious power grab and sets the stage for a new rule that will provide much-needed regulatory certainty for farmers, home builders, and property owners nationwide,” Wheeler wrote in an opinion piece in the Des Moines Register this morning.
Thursday’s action represents the first step in a major rollback of Clean Water Act protections that President Donald Trump had directed in an executive order shortly after coming into office.
In repealing Obama’s rule, Wheeler’s action restores earlier regulations that had governed Clean Water Act permitting before 2015. Both environmentalists and industry groups have complained that the pre-2015 rules are laborious and lead to inconsistent decisions.
Meanwhile, the Trump administration is crafting a subsequent regulationthat it hopes to finish before the end of the year to replace those rules with a much narrower definition of the types of streams and wetlands that are subject to Clean Water Act permitting requirements. By one early estimate from federal regulators, more than half the wetlands now protected would fall out of jurisdiction under the Trump administration’s approach, which would eliminate nearly all federal protections for waterways in arid states like Arizona.
Thursday’s rule is unlikely to create major changes on the ground right away because courts have put the Obama-era rule on hold in more than half the states.
Nonetheless, the move represents a big win for industry groups that say that the Clean Water Act permitting process is often one of the most onerous aspects of their projects. Permits to fill in streams and wetlands can require developers to shrink or change the footprint of a project and pay to counteract the damage they do to waterways.
In fact, industries’ fight to shrink the scope of the water law began shortly after Congress passed it in 1972. Although farmers are exempt from major portions of the law, the American Farm Bureau Federation has been the most prominent advocate of rollbacks, arguing that everyday farming activities like spraying fertilizer could trigger permitting requirements.
Ultimately, legal experts broadly agree that the question of how far the Clean Water Act’s protections reach is unlikely to be settled until the Supreme Court takes up the issue again, and it may take several more years for litigation to reach that stage.
When the high court last addressed the issue, in 2006, the nine justices were unable to reach an agreement. Four conservative justices led by Antonin Scalia endorsed a narrow approach to federal jurisdiction, the four liberal justices backed an inclusive approach, and then-Justice Anthony Kennedy wrote his own, stand-alone opinion that said any waterway with a “significant nexus” to larger rivers downstream warranted federal protection.
Following that decision, the George W. Bush administration directed EPA and the Army Corps of Engineers, which issues permits for filling in wetlands, to follow Kennedy’s test by making case-by-case decisions on the ground about whether individual streams or wetlands have a “significant nexus.” This is the approach that Thursday’s action reinstates.
But Trump’s February 2017 executive order directed his agencies to craft a new approach that embraced Scalia’s narrower take on the reach of Clean Water Act authority.
Because the Supreme Court’s make-up has changed significantly since justices last addressed the issue, legal experts say a rule pegged to Scalia’s approach could receive a very different reception now. When Kennedy retired in 2018, he was replaced by Justice Brett Kavanaugh, who has been skeptical of agency actions that go beyond a strict interpretation of the authorities granted by Congress. Justice Neil Gorsuch, who replaced Scalia, has also taken a limited view of federal power in line with his predecessor.