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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."
