WATER FIGHT: Last Week's Highs and Lows of the Clean Water Act

The wars of the twenty-first century will be fought over water. ---- Ismail Serageldin

It was famed humorist Mark Twain who was given the credit for the incisively well-known phrase that "Whiskey is for drinking; water is for fighting."
For environmentalists concerned about protecting water, last week's 50th anniversary of Earth Day celebration offered a wild waterpark ride of slips and slides in interpreting the 1970's Clean Water Act.

The week began with water advocates crying foul has the Environmental Protection Agency under the guidance of the Trump Administration issued rulings that strip Clean Water Act protections for more than half of the nation’s wetlands and millions of miles of streams. The new Navigable Waters Protection Rule, “waters of the U.S.” (WOTUS), dramatically narrows the definition of what waters are and the scope of which they are subject to federal regulations under the Clean Water Act. The rule would effectively roll back Obama-era regulations and re-define navigable waterways, potentially threatening ecosystems and drinking water supplies.

American Rivers President Bob Irvin says that the new rule is a matter of law and not science stating that ephemeral streams (one in five streams nationally) and isolated wetlands (51 percent of all wetlands) do not qualify as waters under WOTUS.
"We believe that science is the best guide to protecting our rivers and streams," wrote on the American River webpage, "Now, the Trump administration is dismantling clean water protections that are essential to public health and safety."

The EPA said the changes are the results of two executive orders Trump signed last year aimed at preventing delays of federal projects such as pipelines, dams, and mines that have been limited by states and tribes' abilities to study the project's effect on water quality.
“The EPA’s existing certification rules have not been updated in nearly 50 years and are inconsistent...." the agency said in a statement to the Minneapolis Star Tribune, "Leading to confusion and unnecessary delays for federally licensed or permitted projects."
The proposed changes would set a one-year time limit for local reviews while allowing federal agencies to demand a quick turnaround. They would also allow federal agencies to veto what states or local entities decide, raising concerns with environmentalists.
"In the midst of this pandemic," Sierra Club Deputy Legislative DirectorDalal Aboulhosn, issued this statement. "The Trump administration has just given polluters another free pass-- this time to contaminate groundwater, destroy streams and wetlands and put our water at risk. The need for clean water cannot be ignored, nor can the consequences of doing so."

The (WOTUS) rule could take effect later this summer, but will surely face potential legal challenges that might delay it. The Trump administration has hopes that a case challenging the rule will end up before the Supreme Court and, with the current conservative majority, it will be upheld by the majority.

However, in the same week, the U.S. Supreme Court sent a loud and clear message to the Trump administration and the EPA, stating: Don’t go too far in cutting clean water protections.
In a 6-3 ruling, the court said that the landmark Clean Water Act forbids polluters from spewing waste into navigable waters like oceans and streams without a permit even if the pollution travels indirectly through groundwater.
“This is unquestionably a win for people who are concerned about protecting clean water in the United States,” said David Henkin, a lawyer for the environmental group Earthjustice who argued the case in the high court told the Associated Press.

In the most high-profile environmental dispute of the Supreme Court’s term, the decision could certainly weaken the defense to the Trump administration’s future (WOTUS) court challenges. Environmentalists will now argue “If groundwater can be the connection to permitting in Maui, then why can’t groundwater be the connection for extending jurisdiction over isolated wetlands and seasonal waters?"
"The administration may be less sure of its strategy now," wrote American River's Ivrin in an email, "After the Supreme Court’s recent 6-3 decision in the Maui case. In rejecting the administration’s argument that only a direct discharge could be a violation, the majority recognized a broader scope of waters of the U.S."

Much more litigation is sure to follow as environmental groups continue their pledge to block the administration’s moves to undermine the protection of rivers and wetlands while industry and agriculture will be lobbying the EPA and Congress to simplified standards and to loosen what they say is government overreach brought by the Obama administration.

"Ultimately, the scope of waters of the U.S. will likely be decided politically," wrote Irvin in an email, "If the Trump administration is limited to one term, a Biden administration would likely revoke the dirty water rule and restore the Obama-Biden administration’s Clean Water Rule. A Democratic-controlled Congress could clarify the broad scope of waters of the U.S. Or a future Supreme Court case could resolve the issue."

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THE WATER KING: EPA'S Pruitt places himself in charge of all decisions reguarding the nation's waterways.

The Trump administration's attack on the Clean Water Act intensified earlier this week after Environmental Protection Agency Administrator Scott Pruitt placed himself in charge of all decisions regarding the nation’s waterways.

Scott Pruitt

According to a memo provided to CNN by the group Public Employees for Environmental Responsibility dated March 30, states that Pruitt will be making all final decisions when it comes to on the protection streams, ponds and wetlands tossing aside the input of the agency’s regional administrators and scientists.
"With this revised delegation, authority previously delegated to regional administrators to make final determinations of geographic jurisdiction shall be retained by the administrator," the memo states.

EPA spokeswoman Liz Bowman downplayed it, saying the memo is meant to deal with "significant issues or technical difficulties" that could arise while determining wetlands and waterways as the agency begins revamping the Obama-era water regulations.

"Regions will absolutely be involved in the process and work closely with the administrator's office when doing the work to assess jurisdiction for very select, and often rare, cases," Bowman said an article from the Washington Examiner.

The move is being seen by environmental groups as a way to change the approval process and lessen the role of EPA employees and scientists when it comes to evaluating whether projects have a significant negative environmental impact on waterways or wetlands. In the past, EPA scientists reviewed the requests for permits and determined whether a project was detrimental to the local environment waterway or wetland. In the memo, Pruitt notified EPA staff that he would now be in charge of those decisions.

Environmentalists are sensitive to these changes because they say waterways, streams and wetlands are critical to the drinking water supplies, fisheries, wildlife habitat or recreation areas.
"We're concerned about Administrator Pruitt's industry ties, and his moves to toss critical safeguards for our clean water supplies and rivers," American Rivers Amy Kober wrote in an email to Outside Adventure to Max.

In response Sierra Club's, Dalal Aboulhosn, Deputy Legislative Director for Land and Water, released the following statement, "The last person who should have decision making power over our drinking water is Scott Pruitt, who has a corrupt record of getting favors and marching orders from the same corporate polluters who want to dump their toxic pollution in our water. Pruitt’s dangerous power-grab would strip local scientists and experts of their ability to fairly judge whether or not America’s streams and waterways fall under the Clean Water Act’s protection will be disastrous."

Pruitt, who has also drawn scrutiny and calls for his resignation in recent weeks over alleged ethics violations, suspended the Waters of the U.S. rule (WOTUS) in January after the Obama-era rule was stayed by the courts with a clear plan of significantly reducing the scope of the Clean Water Act.

So far 11 states, in conjunction with Natural Resources Defense Council and National Wildlife Federation have filed a lawsuit in federal court in New York to prevent the EPA and the Army Corps of Engineers from delaying implementation of these regulations.

TROUBLED WATERS: STATES & ENVIRONMENTAL GROUPS CHALLENGE EPA OVER CLEAN WATER DELAY

The Trump administration has formally discontinued a major Obama-era clean water regulation. Last week, Environmental Protection Agency Administrator Scott Pruitt announced the suspension of the Clean Water Rule for two years, while the administration works to repeal and replace the rule with their own, industry-friendly version.

The Waters of the United States (WOTUS), the rule was designed to limit pollution in about 60 percent of the nation’s bodies of water, as put forth by the E.P.A. and the Army Corps of Engineers in 2015. It expanded the protection of headwaters, streams, and 20 million acres of wetlands including large bodies of water, such as the Chesapeake Bay, Puget Sound and the Mississippi River under the 1972 Clean Water Act. It held farmers and real estate developers accountable for runoff pollution in streams running through their property. because these tributaries can carry fertilizer discharges and other kinds of contamination from agriculture and fossil fuel extraction into the larger bodies of water.

Under fierce criticism, over 100 parties have since challenged water regulation including business groups and some Republican officials, arguing that it was an overstep of government power, prompting President Trump to take aim against the regulation, calling it “one of the worst examples of federal regulation.”
Shortly after taking office, Trump issued an executive order directing the EPA and the Department of the Army to rescind and replace it with less burdensome regulatory requirements on how farmers, ranchers, real estate developers and industry must safeguard the streams and tributaries.

Last week, Pruitt took a major step toward completing that task, by filing legal documents requiring to suspend the water regulation rule for two years. The rule was set to be implemented in the coming weeks, following a Supreme Court decision that said legal challenges to the regulation should be decided in federal district courts. That ruling will result in the lifting of a stay issued by an appeals court blocking the 2015 rule from going into effect.

“Today, E.P.A. is taking action to reduce confusion and provide certainty to America’s farmers and ranchers,” Pruitt said in a statement. “The 2015 WOTUS rule developed by the Obama administration will not be applicable for the next two years, while we work through the process of providing long-term regulatory certainty across all 50 states about what waters are subject to federal regulation.”

Republicans cheered the administration’s move saying the regulation was an infringement on property rights for farmers, ranchers.
“The Obama administration’s outrageous Waters of the United States rule would have put backyard ponds, puddles, and farm fields under Washington’s control,” said Senator John Barrasso, the Wyoming Republican who is chairman of the Senate Environment and Public Works Committee in an interview with the New York Times, “Today’s action will give Wyoming’s ranchers, farmers, small businesses, and communities clarity."

Dozens of states and environmentalists groups have rallied to fight the move. This week, attorneys general from states including New York, Mississippi, Texas and Louisiana have filed a lawsuit against the Trump administration for delaying enforcement of the EPA rule meant to protect waterways saying it wrongly applied to lands far from traditionally “navigable waters.”

"The Trump Administration’s suspension of the Clean Water Rule is clearly illegal, threatening New York’s decades-long efforts to ensure our residents have access to safe, healthy water," New York Attorney General Eric Schneiderman, who is leading the coalition, "We will fight back against this reckless rollback and the Trump administration’s continued assault on our nation’s core public health and environmental protections.”

In conjunction with the 11 states, Natural Resources Defense Council and National Wildlife Federation also filed a lawsuit in federal court in New York to prevent the EPA and the Army Corps of Engineers from delaying implementation of the regulations.

“The Clean Water Rule protects the bodies of water that feed the drinking water supply for one in three Americans,” said Jon Devine, NRDC senior attorney told The New York Times, “E.P.A. Administrator Scott Pruitt is racing the clock to deny protections for our public health and safety. It’s grossly irresponsible, and illegal."
Environmentalists predicted the rewrite will let polluters off the hook and say the delay is an obvious attempt to make it easier for corporate and agricultural interests to pollute waterways by allowing them to sidestep stiffer regulations.

“This reckless decision by the Trump Administration to suspend the implementation of the Clean Water Rule will put the drinking water for one in three Americans in danger, all so Trump and Scott Pruitt continue to pander to polluters intent on spewing their noxious waste into America’s waterways without accountability." Dalal Aboulhosn, Deputy Legislative Director for Land and Water for the Sierra Club said in a statement released by the environmental organization.

American Rivers, President Bob Irvin also critical of the White House's move says the move undercut water protections against dredging and filling will make innumerable small streams and wetlands that are essential for drinking water supplies, flood protection, and fish and wildlife habitat vulnerable to unregulated pollution.

"Healthy rivers and streams are vital to our communities and economy, and the health of millions of Americans. President Trump and EPA Administrator Pruitt want to throw away carefully crafted safeguards that were based on strong economic arguments, sound science and broad public support," stated Irvin.

EPA's Pruitt has been targeting WOTUS for years, even before he was in Washington; as Oklahoma attorney general, in 2015 where he lead a multi-state lawsuit against the rule, is expected to roll out his own version diminished of the rules this spring and finalize new rules this year.