When President Trump started his tenure he promised to repeal something called the ‘Waters of the U.S.’ rule. And this week he made good on that promise.
The revised definition of “Waters of the United States” was released by the Environmental Protection Agency and the Army Corps of Engineers on Dec. 11.
Wittenberg said that the Trump administration is basing their regulation on a 2006 Supreme Court opinion from Justice Antonin Scalia. In his opinion, Scalia said only relatively permanent waters and wetlands with surface water connections to those waters should be covered by the Clean Water Act. That means a tributary that only flows after it rains or a wetland doesn’t directly connect to a river or a tributary would not be given federal protection, according to Scalia’s opinion.
“A lot of people would argue that Scalia’s [opinion] really isn’t based on science,” Wittenberg said. “Scalia looks at the plain text of the Clean Water Act. He literally looked up the word ‘waters’ in the dictionary and essentially that’s what he based his decision on.”
In the announcement of the new rule, acting EPA administrator Andrew Wheeler said the agency does not know how many streams would no longer be regulated by the federal government if the proposed rule takes effect. But Wittenberg and her colleague Kevin Bogardus has reported that this assertion is false. Through a Freedom of Information Act request, they found documents that the Army Corps of Engineers and EPA staffers had prepared in 2017 to brief then-EPA Administrator Scott Pruitt on this question.
“If you take that presentation and look at it now, knowing that the Trump administration’s rule does not cover what we call ‘ephemeral streams’ (streams that only flow after rain or snow fall), we see in this data that accounts for at least 18 percent of streams nationwide,” Wittenberg explained. “So at least 18 percent of streams nationwide are not going to be covered by the Trump rule. Similarly, the rule would only cover wetlands with a direct surface water connection to streams that have intermittent and perennial flows. That means that 51 percent of the nation’s wetlands – more than half will – not be covered by this rule.”
So what’s at stake here? How might this impact drinking water, habitat for fish and other aquatic life, and also flood control and other benefits that wetlands provide?
“Wetlands, generally speaking, can provide all sorts of important ecological services,” said Wittenberg. “They absorb storm water when it rains. They’re also filtering out any kind of pollutants that might be in the water while they’re holding [stormwater] in. And they also serve as habitat for all kinds of species.”
The version of the rule created under the Obama EPA was based on years of assessing the available science. They looked at more than 1,500 peer reviewed studies before writing the rule, which was then assessed by a scientific advisory board.
So what’s the scientific underpinning of this proposed Trump rule? Wittenberg said while this administration has not done its own scientific assessment, but they did not throw out the Obama science either.
“They’re not saying [the science] is inaccurate. They’re saying it’s a legal question,” said Wittenberg. “It’s a question of, ‘What does the Clean Water Act extend to? And we think the Obama administration drew a line in the wrong place.’ They’re not throwing out the science, they’re more like trying to sidestep it.”
The Trump rule has to be published in the Federal Register, which can take a couple of weeks. Once it is there, the public can submit comments for 60 days telling the Administration what they think. They’re also planning to hold at least one public hearing. Then the Trump administration is going to have to read all of the comments, address them all, and come out with a final rule. But that’s not quite the end of the road.
“I can say with 100 percent certainty that someone is going to sue them over this regulation,” Wittenberg said. “And then it’s going to be up to the courts to decide: Did they correctly interpret the Clean Water Act. And did the Trump administration follow laws about when you can change the rules for these things.”