As Molly reported on Sunday, “regulatory certainty” is the top priority at the U.S. Environmental Protection Agency these says. The agency’s new administrator, Scott Pruitt, extolled it in his speech to staff; he considers it the key to industry’s ability to work within environmental constraints.
But with yet another executive order signed today,the “Restoring the Rule of Law, Federalism and Economic Growth by Reviewing the ‘Waters of the United States’ Rule,” President Trump took a decisive swipe at what little regulatory certainty exists around at least one of the laws Pruitt is tasked with enforcing, the 1972 Clean Water Act. By ordering a review of an Obama-era rule clarifying what precisely the law protects from pollution—Trump merely consigns the courts, industry lawyers and environmental guardians to the same legal morass that has entangled the water law since Congress first wrote it without precisely defining what it protects.
As Rep. Don Young (R., Alaska) put it during a 2009 Congressional hearing, “How do you define what water is?”
Congress originally defined protected “Waters of the U.S.,” or WOTUS, as “traditional navigable” waters. But what about waters that feed into those waters? What about water that flows underground? What about wetlands, seeps, tributaries and springs? Isn’t it all connected?
The whole matter came to a head in 2006, when the U.S. Supreme Court handed down a split decision on Rapanos v. United States, a now-notorious water law case that began with a developer wanting to build shopping mall atop wetlands. Four justices aligned with Justice Antonin Scalia, who argued that water bodies needed to have a “continuous surface connection” to a navigable waterway to qualify for protection. A fifth, Justice Anthony Kennedy, opined instead that the law covered any waters that had a “significant nexus” with navigable waters.
Trump indicated in his order that a new rule should hew more closely to Scalia’s interpretation, which could have consequences in the drought-and-flood-prone West, where significant rivers sometimes run dry in stretches for months or even years, but still have an impact on ecology and public health. It would also mean bad news for the one-third of Americans whose drinking-water suppliers draw upon surface water. When in the summer of 2014 Lake Erie’s poisonous algae forced residents of Toledo, Ohio to avoid tap water for several days, it wasn’t a problem that originated in the lake itself, but with an entire watershed full of fertilizers sluicing from agricultural lands into the lake.
“If we fail to protect tributaries that flow into Lake Erie and the wetlands that filter nitrogen and phosphorus from the water before it gets to Lake Erie,” says Jon Devine, a senior attorney at the Natural Resources Defense Council, “that’s a recipe for trouble.”
The result of all that confusion has been that the EPA and the U.S. Army Corps of Engineers, which grants entities permits to discharge into protected waters, has had to engage in an elaborate case-by-case analysis of permit requests that might affect waters left in a legal gray area—those wetlands, ponds and tributaries that were sometimes protected, sometimes not, depending on whether that significant nexus existed. “Whenever somebody wanted to discharge into one of those water bodies,” says Devine, “they’d have to figure out whether the particular feature in question had a significant impact on downstream water quality.”
That process has been “difficult, time-consuming, inefficient and unscientific. Looking at the impact of a single wetland on the Mississippi was a nonsensical analysis. What really the scientists say you should look at is the effect over a watershed,” an area of land from which all water ultimately drains into a single source.
The Obama administration compiled more than 1,200 peer-reviewed scientific studies and reams of public comment to come up with its clarification, which, its official documents say, “makes the process of identifying waters protected under the Clean Water Act easier to understand, more predictable, and consistent with the law and peer-reviewed science, while protecting the streams and wetlands that form the foundation of our nation’s water resources.”
The rule extended the water law’s protection to 60 percent of U.S. waterways, excluding puddles, but including many wetlands, tributaries and prairie potholes—any “waters that require protection in order to restore and maintain the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas.”
“It’s almost funny to say — they went through the process of showing that streams contribute significantly to the condition of the rivers they flow into,” Devine says. “But that’s indeed what they did.” The administration published the rule in June of 2015.
The American Farm Bureau and its allies thought the rule went too far, forcing farmers to apply for a permit every time they wanted to dig a ditch in which to discharge their agricultural effluent. Environmentalists thought it didn’t go far enough. “The EPA always compromises,” says Pat Parenteau, environmental law professor at the Vermont Law School.
For now, both sides are in a holding pattern: The Sixth Circuit Court of Appeals, where all legal actions for or against the EPA rule have coalesced, issued a nationwide stay against enforcement of the rule in October 2015.
Again, though, that merely cancels out the clarification of the water law’s purview, sending regulators back to their case-by-case evaluations. “That’s the irony of this,” says Sean Hecht, a professor of environmental law at the University of California-Los Angeles. “The agency finally issued a rule. It’s a rule that’s generally quite consistent with what the court was telling the agency its authority was in Rapanos.” Justice John Roberts, in fact, had actually urged the EPA to solve the confusion by at long last writing a rule for the sake of regulatory certainty.
As things stand now, however, it seems regulatory certainly will only come when Pruitt’s EPA—or some future administration’s EPA—crafts its own rule, publishes it in the Federal Register, solicits public comment, and defends its rule against years of of the kinds of court battles Pruitt hates: In the Trump administration’s case, the inevitable lawsuits brought by environmental groups against the EPA, calling for the agency to properly enforce the law.
They will likely have the scientific community in their corner. As Hecht puts it, “There’s no scientist or manager who deals with water who thinks that a surface connection is anything meaningful in terms of the values the Clean Water Act is trying to protect.”
Photo of a harmful algae bloom on Lake Erie. July 22, 2011, from the National Oceanic and Atmospheric Administration, public domain.