Trump Administration Rolls Back Clean Water Protections

WASHINGTON — The Trump administration on Thursday announced the repeal of a major Obama-era clean water regulation that had placed limits on polluting chemicals that could be used near streams, wetlands and other bodies of water.

The rollback of the 2015 measure, known as the Waters of the United States rule, adds to a lengthy list of environmental rules that the administration has worked to weaken or undo over the past 2 1/2 years.

Those efforts have focused heavily on eliminating restrictions on fossil fuel pollution, including coal-fired power plants, automobile tailpipes, and oil and gas leaks, but have also touched on asbestos and pesticides.

An immediate effect of the repeal is that polluters will no longer need a permit to discharge potentially harmful substances into many streams and wetlands. But the measure, which is expected to take effect in a matter of weeks, has implications far beyond the pollution that will now be allowed to flow freely into waterways.

The Obama administration implemented the rule in response to a Supreme Court decision that opened the door to a more expansive legal definition of “waters of the United States” under the 1972 Clean Water Act. With Thursday’s announcement, the Environmental Protection Agency is aiming to drastically narrow that definition, a move that critics fear could be difficult for future administrations to undo because the ideological balance of the Supreme Court has shifted to the right.

Patrick Parenteau, a professor of environmental law at the Vermont Law School, said that, for conservative states and leaders who hold the view that the Clean Water Act has been burdensome for farmers and industry, “this is an opportunity to really drive a stake through the heart of federal water protection.”

Overhauling the rule had been a central campaign pledge for President Donald Trump, who characterized it as federal overreach that impinged on the rights of farmers, rural landowners and real estate developers to use their properties as they see fit. Trump signed an executive order in the early days of his administration directing federal agencies to begin the work of repealing and replacing it.

“Today’s final rule puts an end to an egregious power-grab,” Andrew Wheeler, the administrator of the EPA, said Thursday in a news conference.

Wheeler said the rollback would mean “farmers, property owners and businesses will spend less time and money determining whether they need a federal permit and more time building infrastructure.”

Agricultural groups, an important political constituency for Trump, praised the repeal. Zippy Duvall, president of the American Farm Bureau Federation, said the water rule had prompted outrage from thousands of farmers and ranchers across the country and led to the largest effort to reverse a regulation in his organization’s history.

“When you take private property rights from a man who’s worked all his life,” Duvall said, “that is very intrusive to him and it’s something he just can’t stand for.”

But environmentalists warned of the repercussions. “With many of our cities and towns living with unsafe drinking water, now is not the time to cut back on clean water enforcement,” said Laura Rubin, director of the Healing Our Waters-Great Lakes Coalition.

The Obama rule was designed to limit pollution in about 60% of the nation’s bodies of water, protecting sources of drinking water for about one-third of the United States. It extended existing federal authority which limited pollution in large bodies of water, like the Chesapeake Bay and Puget Sound, to smaller bodies that drain into them, such as tributaries, streams and wetlands.

Under the rule, farmers using land near streams and wetlands were restricted from doing certain kinds of plowing and from planting certain crops, and would have been required to obtain EPA permits to use chemical pesticides and fertilizers that could have run off into those bodies of water. Those restrictions will now be lifted.

A wide range of environmental protections are similarly being eliminated. The administration is rushing to clear the way for oil exploration in the Arctic National Wildlife Refuge, for instance, and weakening protections for endangered species in an effort to help drillers. And, in December 2017, Trump embarked on the biggest land protection rollback in United States history when he reduced two national monuments in Utah by some 2 million acres.

The Environmental Protection Agency and the Army Corps of Engineers, which had worked together to write the original Obama rule, are expected to issue a new, looser replacement rule by the end of this year. It is expected that the new rule, still being developed, will retain federal protections for larger bodies of water, the rivers that drain into them and wetlands that are directly adjacent to those bodies of water.

But it will quite likely strip away protections for streams that run only during or after rainfalls, and for wetlands that are not adjacent to major bodies of water or connected to them by a surface channel. Those changes would represent a victory for farmers and rural landowners who aggressively lobbied the Trump administration.

Lawyers said the interim period between the repeal of the Obama rule and the implementation of the new Trump rule this year could lead to regulatory confusion for farmers and landowners.

“The Obama clean water rule had very clear lines defining which waters are protected by the Clean Water Act, versus which waters are not, while repealing the rule means replacing those lines with case-by-case calls,” said Blan Holman, an expert on water regulations with the Southern Environmental Law Center.

Holman said the administration was replacing “clear, bright-line rules” with a case-by-case system. “This will be very unpredictable,” he said.

Legal experts also predicted a barrage of lawsuits across the country.

Under the provisions of the Clean Water Act, legal challenges must be heard in U.S. District Court, which is based at the state level, rather than federal appeals court. Richard J. Lazarus, a professor of environmental law at Harvard Law School, said that meant that opponents of the Trump administration would focus their challenges in states they perceived as friendly.

“It’s going to be chaos,” Lazarus said. “We’re going to see suits brought all over the country.”