The Trump administration has released a replacement for the former “waters of the U.S.” rule that significantly reduces federal jurisdiction over streams and wetlands, triggering what almost certainly will be a series of protracted legal battles over the scope of the Clean Water Act.
EPA's new Navigable Waters Protection Rule would eliminate federal protection for ephemeral streams, which flow in response to rainfall or snowmelt, restricting jurisdiction to four major categories of waters: territorial seas and traditional navigable waters; perennial and intermittent tributaries to those waters; certain lakes, ponds and impoundments, and wetlands adjacent to jurisdictional waters.
Farmers, homebuilders, energy companies and a broad cross-section of American industry applauded the new rule, saying it will make the regulatory landscape much clearer. They also argue that states either already have authority to protect those waters that will no longer fall under federal purview, or will step in to provide the necessary protection.
National Cattlemen’s Beef Association President Jennifer Houston commended the administration “for listening to cattle producers and for working with us to get us to this point. We look forward to working with EPA and the Army Corps of Engineers to successfully implement this new rule in the years to come.
“NCBA relentlessly fought WOTUS on Capitol Hill, at the agencies, and in the courts,” Houston said. “Today, we can rest a little easier knowing that some power has been put back in the hands of landowners.”
Conservation groups and societies representing a diverse array of natural resources scientists, however, have been heavily critical of the administration’s proposal.
In fact, the new rule was announced a day before EPA’s own Science Advisory Board is scheduled to finalize a draft “commentary” on the proposed rule that says it “decreases protection for our nation’s waters and does not support the objective of restoring and maintaining ‘the chemical, physical and biological integrity’ of these waters,” as stated in the Clean Water Act.
The National Wildlife Federation vowed to take legal action. “Since the Administration refuses to protect our waters, we have no choice but to ask the courts to require the EPA to follow the law,” NWF President and CEO Collin O’Mara said. “We simply cannot afford to lose protections for half of our remaining wetlands, nor can we take any unnecessary chances with our drinking water.”
In rejecting jurisdiction for ephemeral streams, the rule differs significantly from the 2015 rule, which relied on an extensive scientific analysis on water connectivity that found “ample evidence” to demonstrate “many wetlands and open waters located outside of riparian areas and floodplains, even when lacking surface water connections, provide physical, chemical, and biological functions that could affect the integrity of downstream waters.”
EPA did not prepare a similar report this time around, emphasizing instead the administration’s desire to come up with legally defensible regulations “informed by science.”
In doing so, EPA was guided by an executive order issued by President Donald Trump early in his presidency which directed the agency to come up with a new rule using as a model the late Justice Antonin Scalia’s opinion in the 2006 Rapanos decision.
That decision was a 4-1-4 split - with Justice Anthony Kennedy the man in the middle - that the previous administration interpreted as requiring the government to show waters must have a “significant nexus” to traditional navigable waters in order to regulate them.
The test was advanced by Kennedy - and has been upheld by all the circuit courts of appeals that have considered the question.
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