President Trump will be issuing his Executive Order shortly announcing his intent to stop defending the Clean Water Rule in court (against, among other states, Scott Pruitt’s Oklahoma) and directing the agencies — Environmental Protection Agency and Corps of Engineers — to review and revise the rules to fit with his policy intention to ensure that “navigable” waters are “kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles played by Congress and the States under the Constitution.”
At stake with this rule is the baseline question of what water bodies are — and are not — protected under the Clean Water Act.
Many had expected Trump to roll back Obama’s Clean Water Rule and revert to the Bush-era rule which relied on Justice Kennedy’s controlling decision in the 4-1-4 split decision in the 2006 Rapanos case — requiring that for a water to be covered under the Clean Water Act’s jurisdiction it must have a “significant nexus” with navigable waters. The Obama rule relied on that same legal standard but used an extensive scientific review to determine that broad classes of tributary streams and wetlands that are hydrologically connected to navigable waters but that do not flow year round do indeed have a “significant nexus” and are covered by the Clean Water Act.
But President Trump’s Executive Order doesn’t just start the process of repealing the Obama-era rule — he goesfurther and directs his agencies to consider using the minority standard espoused by the late Justice Scalia in the Rapanos case. Scalia’s approach would limit the Clean Water Act’s reach to perennial streams and lakes — those that (essentially) flow or are present all the time — and to the wetlands with direct surface flow consistently connecting them to those perennial streams or lakes where the boundary between stream and wetland is difficult to discern. He would remove from the Clean Water Act’s reach the seasonal and intermittent streams that represent about 60% of stream miles nationwide, and in my home state of Colorado are 75% of our stream miles.
What does this mean? Many currently protected wetlands could be dredged and filled for all types of development, unless they are immediately adjacent to a perennial stream. Pollution could potentially be dumped into dry gullies — knowing full well that it would be washed into downstream rivers with the next rainstorm — but evading the protections of the Clean Water Act (though thankfully many state laws will maintain a stronger standard of protection).
The Scalia/Trump standard ignores the basic laws of nature and pretends that protecting downstream water quality can be achieved while ignoring the upstream sources. Gravity means water flows downhill, and if you pollute the headwaters the downstream rivers will suffer. But common sense reality is being ignored by Trump in his push to roll back the regulatory protections for our health and environment.
Just as alarmingly, this EO is a rejection of the rule of law. Trump is literally telling his agencies to advance a standard that was rejected by five justices of the US Supreme Court in the controlling case on Clean Water Act law. I expected him to roll back the Obama rule, but promoting a minority opinion of the Supreme Court to become the law of the land? I didn’t see that coming.
Jonathan Swan at Axios tweeted an advance copy of the EO that he had obtained — you can read it for yourself on his feed here.
Wednesday, Mar 1, 2017 · 12:51:04 AM +00:00
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RockyMtnHigh
Update: Since some have asked — many states have defined waters protected under their state water quality laws more broadly than the federal rules, and so that does provide a backstop against pollution discharges by point sources in those states. However, I do not believe many states have regulations for “dredge and fill” — the 404 part of the Clean Water Act that requires permits for dredging and filling in wetlands and waterways (for development, bridge construction, in-stream modifications, etc.). My home state certainly does not, so that is where we’d be most effected by the EO.
Clarifying the Rapanos decision: it was a messy 4-1-4 affair with Scalia’s four taking the narrowest view of what waters were protected by the Act, Justice Kennedy establishing the controlling view (with his “significant nexus” test where the Act also applied to other waters with such a nexus to the navigable waters included by Scalia), and then 4 justices with an even more expansive view of what the Clean Water Act protects. Trump’s EO proposes to use the definition proposed by Scalia which was supported only by 4 justices on the court, with the other 5 rejecting it as too narrow.
FInally, more on the release of the EO has been written up by Meteor Blades here.
