Waters of the United States

The Trump effort to slash the scope of Clean Water Act protections is meant to be a developer’s dream but it is an ecological nightmare, jeopardizing the drinking water sources for millions of Americans, weakening flood control, and degrading aquatic habitats.

Like his wish to repeal and replace Obamacare, President Trump wants to repeal President Obama’s 2015 “Waters of the United States” (WOTUS) rule which would increase the extent of waters by between 3 to 5 percent. Per a Trump Executive Order, Step 2 is a new rule “consistent with the opinion of Justice Antonin Scalia” in his 2006 dissenting opinion limiting Clean Water Act jurisdiction to waters that are “navigable.”

Under Trump’s plan –

  • As much as 60% of U.S. waters and wetlands, and up to 90% in the arid West, would no longer be protected under the Scalia approach;
  • Most Americans get their drinking water from sources that would have no legal protection under the Clean Water Act;
  • Ceding clean water primacy to the states and tribes would be disastrous because these governments lack the resources to protect the waters that would be abandoned.

This plan is premised on the preposterous notion that wetlands have no – as in zero – economic benefit, a proposition that flies in the face of every scientific and economic article written about wetlands valuation.

Every previous modern president of both parties have extolled the importance of protecting wetlands. By contrast, Trump has denigrated the policies of his predecessors, claiming they protect puddles and ditches even though both are explicitly excluded from WOTUS.

We have just had a series of devastating hurricanes whose havoc was heightened by the loss of wetland buffers. Unfortunately, the U.S. now has a developer president who knows the price of everything but the value of nothing.

Trump Signing

Since the split Supreme Court Ruling in the 2006 Rapanos case, there has been confusion over what constitutes a “navigable water” subject to the protections of the Clean Water Act.

 Agencies issued guidance in 2008 that was based on the more protective of the two Rapanos rulings: that any waters, including isolated ponds and wetlands, that possessed a “significant nexus” with navigable waterways would be subject to the CWA’s protections.

The Obama administration began drafting a rulemaking that would codify this interpretation, and in 2015, the EPA issued a final rulemaking

clarifying how the Agency would classify a water of the U.S. based upon the Court’s “significant nexus” requirement. However, industry sued the Agency and got a preliminary injunction on the implementation of the rule while its merits were being litigated; SCOTUS held that all challenges to the Rule must be heard in district courts rather than appellate courts.

On February 28, 2017, President Trump signed the “Presidential Executive Order on Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” In it, he ordered the Corps and EPA to review the Clean Water Rule, and stated that any future rulemaking “shall consider interpreting the term ‘navigable waters’ … in a manner consistent with the opinion of Justice Antonin Scalia” in Rapanos–despite this opinion not being the official Court opinion or being binding law. Implementation of the Scalia interpretation would remove CWA coverage for close to 90% of all wetlands within the nation.

To that end, EPA issued two documents under instructions from Administrator Pruitt: 1) Definition of “Waters of the United States” – Recodification of Pre-existing Rules; and 2) an Economic Analysis for the Proposed Definition of “Waters of the United States” – Recodification of Pre-existing Rules. The proposed rule rescinds the 2015 Clean Water Rule that was stayed, and is the first step in a two-step process to repeal and replace the Clean Water Rule with a new regulation in line with the Scalia definition.

Wetlands services

Former U.S. Environmental Protection Agency Administrator Scott Pruitt rigged the cost-benefit study justifying the repeal of an Obama clean water protection in order to reverse the overwhelming weight of evidence that the benefits outweighed its costs. Pruitt and his political team decided not merely to lower the value of wetlands; they decided that wetlands have no quantifiable value at all and thus there is no benefit in saving them from destruction – a decision reflected in a notice published in today’s Federal Register.

At issue was what should be protected as “Waters of the United States” (WOTUS) under the Clean Water Act. On February 28, 2017, President Trump signed an Executive Order telling the EPA and Army Corps of Engineers to review the 2015 WOTUS rule promulgated under Obama which would slightly increase the extent of protected streams, ponds and wetlands in the U.S. by between approximately 3 to 5 percent.

Potential benefits of expanded WOTUS jurisdiction include flood storage, improved water quality, and enhanced wildlife habitat. In 2015, the estimated annual benefits of this expansion were placed between $313.5 million and $513.2 million, with net benefits of between $129 million and $205 million. In the Pruitt version, every cent of the up to a half-billion dollars in value has completely disappeared.

EPA’s new rationale for zeroing out the benefits associated with wetland protection is the “uncertainty” associated with past economic studies of the public’s willingness to pay to retain wetlands. The hastily thrown together Pruitt study says all prior studies should be thrown out “because public attitudes toward nature protection could have changed” – an absurd assertion for which no support was offered.

This sleight of hand has major legal ramifications as it makes Pruitt’s repeal vulnerable to being invalidated under the Administrative Procedures Act (APA) for being “arbitrary and capricious.” Not surprisingly, House Republicans are pushing a rider to exempt WOTUS repeal from the APA, altogether.

“By zeroing out all benefits associated with wetland protection, Trump’s EPA ignores both science and economics,” added Bennett. “I had heard of alternative facts but now they want to use alternative math.”

Just as Trump would like to repeal and replace Obamacare, his plan is to repeal and replace WOTUS. The Trump order also directs EPA to pursue a new rule that is “consistent with the opinion of Justice Antonin Scalia” in his dissenting opinion in a 2006 case. The Scalia approach would substantially cut the amount of streams, ponds and wetlands protected under the Clean Water Act by as much as 90% – a radical surgery amputating the scope of one of America’s fundamental anti-pollution laws.

About 117 million Americans – one in three people – get drinking water from streams that lacked clear protection before the Clean Water Rule.” With repeal of this rule, we lose this plus more.

Americans get their drinking water from one of two places: groundwater (e.g., aquifers), or surface waters. Approximately 10% of people in the United States rely on private wells for their drinking water; the remaining 90% get their water for drinking, cooking, and bathing from public drinking water systems.

Both ground and surface water quality and quantity are protected by intermittent, ephemeral, and headwater streams and their associated wetlands. These streams play a crucial role in ensuring a continuous flow of water to downstream freshwater ecosystems. Specifically, water in streams moves between and among the soil, streams, and groundwater. If these small streams and associated wetlands are filled, downstream waters will be adversely impacted and can even cause some wells to run dry.

These small streams not only protect the quantity of water downstream, but also water quality. Intermittent, ephemeral, and headwater streams trap sediment, and absorb and convert excess nutrients. Bacteria and fungi on the bottom of streambeds converts inorganic nitrogen and phosphorous into less harmful compounds. If these streams are filled, contaminated, or degraded, it can lead to contamination and eutrophication of downstream waters.

The Trump Administration is attempting to redefine waters of the United States (WOTUS) in such a way that will remove federal jurisdiction from these intermittent, ephemeral, and headwater streams and their associated wetlands. Moreover, they are trying to repeal the 2015 Clean Water Rule which specifically protected streams that protect drinking water. The result of this is that these small streams and wetlands will be able to be filled or destroyed without a permit under the federal Clean Water Act.

The data that EPA scientists used (Read EPA methodological descriptionto create the 2015 Clean Water Rule include an analysis of which small streams impact drinking water around the country. The spreadsheets linked below were used by EPA, and display which public surface drinking water systems are dependent on intermittent, headwater, and ephemeral streams for the 48 contiguous United States.

Approximately 117 million people, or more than one-third of the U.S. population, get some or all of their drinking water from systems that rely in part or in entirety on intermittent, ephemeral or headwater streams.

See state-by-state summary of affected streams and wetlands for the percentage of people in your state dependent on intermittent, ephemeral or headwater streams for drinking water.

Look at county-specific breakdown of impacts to see what percentage of your county is dependent on intermittent, ephemeral, or headwater streams, find the data for your state (states are listed alphabetically). Then find your county (counties are listed alphabetically within each state). If your county is not shown, it means that your drinking water does not come from surface water.

See a Legend and Glossary for linked tables.

Other links of interest:
Totals by state
Executive summary of analysis

NEWS FROM PEER

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