The administration has completed its rewrite of the nation’s official definition of what constitutes a federally protected water body, the culmination of a push that began three years ago, just weeks after President Donald Trump’s inauguration.
The new definition of is far narrower than the Obama administration’s version, as it excludes isolated wetlands and ephemeral streams, which only flow after a heavy rainfall. However, the definition does include intermittent streams that flow only during certain times of year.
“If it normally flows, it is in,” said David Ross, the EPA’s top water regulator. “We believe our rule provides clearer instruction to the public.”
The administration has now completely rewritten the so-called Waters of the United States rule, also known as WOTUS. This rule defines which bodies of water are large enough to be protected under federal anti-pollution regulations, and which aren’t. (RIN: 2040-AF75)
The Environmental Protection Agency and the Army Corps of Engineers announced the move Thursday before a planned speech from the Environmental Protection Agency’s administrator, Andrew Wheeler, to a convention of the National Association of Home Builders in Las Vegas.
The new policy “strikes the proper balance between Washington, D.C., and the states,” Wheeler said in a phone call with reporters. “We owe it to the public to finalize rules that are consistent with congressional intent and the law.”
A large part of its legal justification rests on the concept of a “typical year.” Determining whether a stream is intermittent and protected or ephemeral and unprotected will depend on how it flows during a typical year, which is based on a rolling 30-year average of precipitation.
Ross said including this 30-year average will allow the rule to account for local variation in flows due to climactic changes. “We thought long and hard and that’s one of the reasons the ‘typical year’ definition is the way it is,” he said.
But Geoff Gisler, an attorney with the Southern Environmental Law Center, said the new policy also includes a loophole that allows regulators to bring in other data to define what a typical year is.
“They say, ‘We’ll use long-term weather data,’ but they say ‘We’ll also have to use the professional judgment of Corps regulators,’” Gisler said. “That’s not clarity. That’s where we have been in this situation where so much depends on which Corps employee is out in the field that day.”
The new policy will take effect 60 days after it is formally published in the Federal Register, which could happen within days.
New Rule Excludes Many Wetlands
In 2015, the Obama administration put forth a broadly defined WOTUS rule. It was fiercely opposed by some farmers, ranchers, and other businesses worried that a broad definition would lead to more costly federal oversight of small streams that run through their land.
Trump vowed to repeal and replace this rule during his 2016 campaign, but the process of achieving this has taken a three-years-long slog, with legal setbacks along the way.
More legal peril for the administration is likely ahead: Democratic-led states and many environmental groups are expected to file suit against the administration and seek to have the rewrite struck down in court.
Kelly Hunter Foster, a senior attorney with the group Waterkeeper Alliance, said the new WOTUS rule effectively guts the Clean Water Act. “We will fight to get this illegal regulation overturned,” she said in a statement.
Gisler said his group will likely also file suit.
The rule could also face trouble on Capitol Hill since Democrats control the House. Both Reps. Peter DeFazio (D-Ore.) and Frank Pallone (D-N.J.), the chairs of the two House committees in responsible for environmental oversight, slammed the policy, with DeFazio saying he’ll use the power of his gavel to try to fight it.
However, the Trump administration’s move was met with little to no criticism from Republicans, a sign of how partisan the issue of water policy has become. Rep. Louis Gohmert (R-Texas), a member of the House Committee on Natural Resources, said this move is a sign of how there has been a total U-turn on environmental policy since the Obama administration.
Back then, he said, “it seemed like the EPA and the Corps of Engineers were competing to see who could take away more private property and water rights.”