Federal Wetlands Rule Rollback has a Swampy Foundation
The Trump Administration recently announced that it would eliminate an Obama-era regulation called the Clean Water Rule, which was imposed in 2015 to limit development in wetlands and streams.
During President Trump’s announcement, he explained why he thinks the regulation is burdensome on economic growth and job creation.
“If you want to build a new home, for example, you have to worry about getting hit with a huge fine if you fill in as much as a puddle – just a puddle – on your lot,” Trump said at a press conference. “I’ve seen it. In fact, when it was first shown to me, I said, ‘You’re kidding, aren’t you?’ But they weren’t kidding.”
Many Congressional Republicans have made the same claim – that the Clean Water Rule is an oppressive over-reach by the U.S. Environmental Protection Agency, because it means EPA is imposing federal control over even puddles on farms.
But let’s examine the actual text of the regulation, as it is published in the Federal Register, volume 80, No. 124, in June 2015.
“No, it’s not true, as a category,” said Curt Spalding, a professor at Brown University and a former regional administrator for the EPA.
He explained that not only does the rule explicitly list puddles as waters that are not regulated, the rule also continues a four-decade old policy of having the states and sometimes the Army Corps of Engineers – not EPA – take the lead in making most decisions about most building in wetlands and streams. And not only do the states and Army Corps say yes to most permits to build in wetlands, the new regulation continues to exempt farmers from even having to apply for permits.
“Normal farming practices are not regulated – as long as they are normal farming practices,” Spalding said. “Now, if they propose to fill a whole area – a relatively wet area – that they have been farming routinely for decades, and turn it into something completely different? Build a hotel on it, or something like that? Well, then they become a developer. But if they continue farming, they are allowed to do that.”
So what exactly does Obama’s Clean Water Rule do? Well, nothing, actually – because the courts put them on hold almost two years ago. But what the regulation (also called the Waters of the U.S. Rule) was intended to do was to expand environmental protections to more waterways. It requires developers to apply for permits before they could build in ephemeral streams – that is, waterways that only have water in them occasionally, after rains – and isolated wetlands not connected to rivers.
These temporary and isolated waters were protected until a Supreme Court decision during the George W. Bush administration (Rapanos v. United States) left them vulnerable to development. The Obama administration wanted to essentially restore the pre-2006 clean water protections, but this sparked an outcry from landowner rights groups and Republicans.
“This was, by most people’s understanding, a pretty moderate proposal a few years ago, the Clean Water Rule,” said Evan Isaacson, a policy analyst for the Center for Progressive Reform. “And so the outrage that it elicited can’t really be explained by anything other than politicking, unfortunately. And so that’s why I think most people are probably scratching their heads a little bit.”
Navis Bermudez, federal legislative director for the Southern Environmental Law Center, said the Trump Administration rollback could do real damage to clean water.
“We estimate something like 60 percent of streams in the lower 48 states would potentially be left without coverage with the Trump Administration’s eventual plan, if it goes into place, because they don’t flow year round,” said Bermudez. “That also means that, in terms of wetlands, there are 110 million acres of wetlands in the Continental U.S., and a majority of those would probably not be covered under the Trump Administration’s plan.”
In the Chesapeake Bay region, the proposed change will likely have less impact than in the dry West, because more streams here flow in all seasons. But it could still weaken protections for some small waterways here, and thus hurt the quality of local drinking water supplies.