Trump moves to relax Obama-era water protections

The Trump administration on Tuesday proposed reduced federal protections for many small waterways such as streams and wetlands, opening them up to potential new harm from developers, energy companies and others.

The Environmental Protection Agency’s (EPA) proposal would redefine the “Waters of the United States," a legal term for which waterways are protected from harm and pollution by the federal government under the Clean Water Act.

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The change is a major victory for developers, energy companies and other industries that emit water pollutants and use land. They had complained that under the 2015 rule created by the Obama administration, large swaths of often dry land required permits for routine activities.

The announcement came days after the EPA set out plans to roll back carbon dioxide limits for new coal-fired power plants. In recent months, the agency has moved to repeal or weaken regulations on auto efficiency, power plant emissions, methane pollution and other major rules, mainly from the Obama administration.

EPA’s new plan is already setting off alarm bells from environmentalists, who say it could present a grave threat to drinking water, wildlife and ecosystems.

It’s also guaranteed to kick off numerous aggressive lawsuits once the EPA makes the changes final.

The Obama-era rule is only currently in effect in about half of the country’s states, due to lawsuits challenging it.

Trump administration officials said that the new rule would make it easier and simpler for farmers, landowners, developers, states and others to tell if a water body is federally protected.

Streamlining that determination is important to industries because certain activities that could pollute water, like filling ditches or moving ponds, might require an expensive federal permit.

EPA leaders are promoting the rule change as a means to give states more authority to regulate water pollution.

“Our proposal would replace the 2015 definition with one that respects the rule of law and the primary role of states in managing their land and water resources. It would end years of uncertainty over where federal jurisdiction begins and ends,” acting EPA Administrator Andrew Wheeler said at an event at agency headquarters with dozens of industry officials and Republican lawmakers.

“Our new, more precise definition means that hard-working Americans will spend less time and money determining whether they need a federal permit and more time upgrading aging infrastructure, building homes, creating jobs and growing crops to feed our families,” he said.

The EPA estimated that the new rule would avoid as much as $164 million in industry compliance costs annually. But it would lose up to $38 million from the Obama rule's benefits, since some water bodies like wetlands or ponds could be harmed.

Under the Trump administration’s proposed definition, certain small streams that are tributaries of larger water bodies will no longer be protected, nor will wetlands that aren’t directly connected to otherwise protected waters such as rivers.

Streambeds that only have water when it rains also won’t be subject to federal protection.

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David Ross, head of the EPA’s Office of Water, said the rule keeps many of the same features of the one from 2015. But the biggest differences come in the definitions of wetlands and tributaries, he told reporters on Monday.

He pointed to many of the inclusions and exclusions in the new rule, saying “a lot of that language was actually pulled from the 2015 rule.”

The EPA could not offer clear numbers for the amount of waterways that would lose protections under the new proposal.

Ross said regulators could not quantify the amount and he criticized attempts to do so, saying many of the determinations would have to be made on-site.

Environmentalists are warning that about 60 percent of stream miles will no longer be protected from pollution under the rule. 

“No one has that data,” Ross said, challenging green groups. 

“There is no map of waters of the United States, and there never has been one.”

Before joining the EPA, Ross worked for the Republican attorneys general of Wyoming and Wisconsin to help sue to stop the 2015 rule.

Waterways that aren’t federally protected may be subject to certain state protections, or they may be completely up to landowners to control.

The question of which water bodies get federal protection has been fiercely debated for decades. The Clean Water Act dictates that “navigable” water is protected, but regulators have also sought to protect a certain distance upstream, since that water eventually reaches larger bodies such as the Chesapeake Bay and the Mississippi River.

Green groups said the Tuesday proposal is a giveaway to polluters like oil companies and developers.

“The Trump administration will stop at nothing to reward polluting industries and endanger our most treasured resources,” Jon Devine, director of the Natural Resources Defense Council’s (NRDC) federal water program, said in a statement.

“Given the problems facing our lakes, streams and wetlands from the beaches of Florida to the drinking water of Toledo, now is the time to strengthen protections for our waterways, not weaken them.”

The NRDC and others hinted that they would likely sue in federal court if the EPA carries out the proposal.

“This isn’t a regulatory rollback — it’s a steamroller to the environmental oversight we need to protect our waterways,” said Wenonah Hauter, executive director of Food and Water Watch.

“Piece by piece, molecule by molecule, [President] Trump is handing over our country to corporate polluters and other industrial interests at the expense of our future.”

The Chamber of Commerce, on the other hand, cheered the proposal.

"This new rule is good news for businesses, farmers, and localities because it strikes a better balance between economic growth and environmental progress than the rule it replaces," Karen Harbert, president of the group's Global Energy Institute, said in a statement.

“The previous rule gave EPA and the Army Corps unprecedented authority to permit and enforce areas well beyond what Congress intended. This revised rule will end a great deal of uncertainty that came in the wake of the former rule, and it will provide much-needed clarity."

Ann Navaro, a lobbyist at the firm Bracewell LLP and former official at the Army Corps of Engineers, which works with the EPA to enforce the Clean Water Act, also applauded the plan.

“It will reduce the regulatory burden on landowners, developers, and industry. It will simplify the reach of the Clean Water Act so that the regulated public can better understand how the law applies to their property without having to undertake complex subjective analysis,” she said.

“The proposed rule will focus on waters that are meaningfully connected to other jurisdictional waters, rather than trying to expand the reach of federal jurisdiction with difficult to understand and implement subjective standards.”

The EPA will accept public comments for 60 days on the rule. It then must review the comments and make changes before making the rule final, at which point opponents — likely green groups and Democratic states — can sue in federal court.

Ross said the EPA hopes to finalized the rule by the end of 2019, but he resisted setting any actual timeline.

The EPA is working on a separate track to repeal the 2015 rule. It proposed to do so in 2017 and refined the proposal this year, but still has not made the repeal final.

An attempt under former EPA Administrator Scott PruittEdward (Scott) Scott PruittOvernight Energy: Rate of new endangered species listings falls | EPA approves use of 'cyanide bombs' to protect livestock | Watchdog says EPA didn't conduct required analyses EPA didn't conduct required analyses of truck engine rule: internal watchdog Is Big Oil feeling the heat? MORE to indefinitely delay the 2015 rule’s implementation was overturned in court earlier this year, leading to the current fractured, state-by-state enforcement.

Miranda Green contributed. Updated at 12:42 p.m.