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EPA finalizes clean water rollback amid science challenges

New rule removes federal authority over smaller bodies of water that feed larger water supplies. Opponents said states should handle such local regulation

President Donald Trump shows a hat that says “Make Counties Great Again” before signing an executive order in February 2017 to  roll-back of environmental regulations put in place by the Obama administration. (Aude Guerrucci-Pool/Getty Images file photo)
President Donald Trump shows a hat that says “Make Counties Great Again” before signing an executive order in February 2017 to  roll-back of environmental regulations put in place by the Obama administration. (Aude Guerrucci-Pool/Getty Images file photo)

The Trump administration on Thursday finalized a rule that significantly reduces the federal government’s role in regulating waterways, fulfilling a campaign promise to farmers and energy interests and handing a win to conservatives who have pushed for changes to the Clean Water Act regulations.

The rule, which redefines what constitutes “waters of the United States,” revises decades-old standards for regulating waterways, a move environmentalists warn will lead to pollution of water that wildlife and people depend on, especially in low-income areas and communities of color. Several current and former EPA and Army Corps of Engineers employees and scientific advisers oppose the move, charging that political appointees blocked the use of scientific information in writing the rule.

The rule is certain to be challenged by environmental groups and be rescinded if a Democrat wins the presidential election in November. The Democratic presidential candidates have promised to write stricter clean water rules, and one of them, Massachusetts Sen. Elizabeth Warren, has said she would “restore the Obama-era water rule that protected our lakes, rivers, and streams, and the drinking water they provide.”

Thursday’s decision builds on the Trump administration’s efforts to limit the federal government’s role in environmental protections. The administration last year finalized a separate rule repealing the 2015 Clean Water Rule, commonly called WOTUS, that greatly expanded federal oversight of waterways. That Obama administration rule was written to clarify decades of confusion over what constituted federally regulated waterways.

State authority

Industry proponents such as Senate Environment and Public Works Chairman John Barrasso, R-Wyo., and Sen. Joni Ernst, R-Iowa, along with conservative state leaders opposed the previous rule from the beginning, saying it would hamper economic activity in areas near water sources and that it was an overextension of federal authority over states. 

Ernst said the new rule will provide “the predictability and certainty our hardworking farmers, manufacturers, and landowners in Iowa deserve.”

Barrasso praised Trump for delivering on his promise “to give Americans clean water and clear” rules. “Regulations must follow the law and be easy for Americans to understand,” he said in a news release.

Republican lawmakers repeatedly tried to use the annual appropriations bills to withhold funds from the EPA to enforce WOTUS regulations.

The agency said the revised definition identifies four “clear” categories of waters that the federal government can regulate under the Clean Water Act: the territorial seas and traditional navigable waters, such as the Atlantic Ocean and the Mississippi River; perennial and intermittent tributaries; certain lakes, ponds, and impoundments; and wetlands adjacent to jurisdictional waters.

 “After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations, our new Navigable Waters Protection Rule strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters, and it does so within the authority Congress provided,” EPA Administrator Andrew Wheeler said.

The federal government will not regulate water bodies that only contain water from rainfall; groundwater; many ditches, including most farm and roadside ditches; prior converted cropland; farm and stock watering ponds; and waste treatment systems, the EPA said. 

‘Scientifically indefensible’

Betsy Southerland, who worked in different roles at the EPA for three decades, including as director of science and technology in the Office of Water, said the rule is “scientifically indefensible” and socially unjust.

[Trump administration proposal would ease environmental impact reviews for federal projects]

“EPA’s final rule limiting federal water quality protections to a very small set of waters and wetlands will result in the impairment of drinking water, fisheries, and flood control for communities throughout the U.S.,” Southerland, who retired from the EPA in 2017, told CQ Roll Call in an email. “This rule transfers the costs of pollution control and wetland protection from miners, oil and gas producers, and land developers who will no longer be regulated to downstream communities who will have to pay to protect themselves.”

Her comments echo those of a group of current and former EPA and Army Corps of Engineers employees who have complained that the writing of the new rule was “controlled solely by political appointees” at the EPA headquarters who dismissed scientific input, directed expert staff to “refrain from submitting comments that could be part of the formal administrative record,” and publicly mischaracterized scientific content.

In the complaint dated Jan. 19, the 44 employees under the organization Public Employees for Environmental Responsibility demanded that the EPA’s Office of Inspector General ensure that agency experts are allowed to provide “meaningful” contributions in the rulemaking and that the political appointees implicated are “disciplined for violating the Scientific Integrity Policy and undergo remedial training” on the topic.

EPA Administrator Andrew Wheeler, Assistant Administrator David Ross, General Counsel Matt Leopold, Principal Deputy General Counsel David Fotoui, Senior Science Adviser Owen McDonough and other top officials in the EPA’s Office of Water violated the agency’s Scientific Integrity Policy, the complaint charges, by blocking the agency’s best scientific research and its experts from contributing to the new definition of waters of the United States.

“The environmental and public health implications of these scientific integrity violations cannot be overemphasized, but another casualty is the public’s confidence in EPA science,” PEER science policy director Kyla Bennett, a scientist and former EPA attorney, said in a news release announcing the complaint.

‘Corporate friends’

In anticipation of the rule, Madeleine Foote, deputy legislative director at the League of Conservation Voters, called the rule “an all-out assault on our clean water safeguards” that would “turn our streams into dumping grounds for big polluters and destroy” millions of acres of wetlands. 

“This gutting of vital Clean Water Act protections takes us backwards on the progress we’ve made in cleaning up our waterways and puts the health of our families at risk for the sole benefit of Trump’s corporate friends,” Foote said.

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The latest actions come four days after Trump said he had directed the Army Corps of Engineers to withdraw a separate rule on reservoir and water supply operations proposed in 2016 by the Obama administration.

The Water Supply Rule, which the Army Corps said was meant to clarify its policies governing the use of its reservoir projects for domestic, municipal and industrial water supply, was never completed. The agency in September paused work on it for six months to further consult with states and local communities that had complained about it.

“In coordination with the administration and the intent to have a lighter federal touch, the Corps is withdrawing the proposed water supply rule,” R.D. James, assistant secretary of the Army for civil works, said Monday.

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