Trump Administration Slashes Protections for Millions of Acres of Streams, Wetlands

Water is Life, right? It’s more precious than gold, correct? Clean water is more a much critical and essention resource for life on planet earth than, say, taxpayer-subsidized beef and sheep or taxpayer-subsidized oil drilling on public lands, right? The U.S. military believes – and has strong evidence – that water (or the lack of clean water) is a national security threat, especially around the world. Yet, today, the Trump administration removed federal Clean Water Action protections for ephemeral and intermittent streams and wetlands, which account for a huge chunk of waterways in the U.S., especially in the arid West and Southwest.

As you can see in the map above, the western U.S. – and particularly the American Southwest – is hit incredibly hard by the Trump administration’s latest environmental rollback. Obviously, many of those watersheds are found on federal public lands, including National Forest lands managed by the U.S. Forest Service.

A press release from WildEarth Guardians contained this information specific to Rio Grande Basin:

“The health of waterways in the Rio Grande Basin depends largely on the categories of waterways expressly excluded under the rule: ephemeral and intermittent streams, wetlands, and groundwater. Ephemeral and intermittent streams—those waterways that only flow in response to storm events or go underground for part of the year—make up at least 88 percent of streams in New Mexico and 68 percent in Colorado. New Mexico, alone, contains about one million acres of wetlands. The quality of the water in these tributary streams and wetlands directly translates into the quality of water of the Rio Grande.

The Rio Grande is the fifth largest watershed in north America covering an area larger than the state of Texas. It provides irrigation and drinking water to over 6 million people in the United States and Mexico. Even though the river only makes up one percent of the landscape, it is a critical migratory corridor for tens of thousands of sandhill cranes that overwinter each year in central New Mexico and it supports over 400 species of native fish, wildlife and plants.

Rio Grande Waterkeeper and Waterkeeper Alliance prepared a detailed fact sheet analyzing how the proposed rule would impact tens of thousands of miles of streams, creeks, arroyos, and washes in the Rio Grande Basin. The Santa Fe River and Rio Puerco (one of the largest tributaries to the middle Rio Grande) are just two examples of major tributaries that will no longer be protected under the new rule.”

Here’s the press release from Center for Biological Diversity.

Trump Administration Slashes Protections for Millions of Acres of Streams, Wetlands

Move Puts More Than 75 Endangered Species on Fast Track to Extinction

WASHINGTON— The Trump administration finalized a plan today to slash Clean Water Act protections for streams, rivers and millions of acres of wetlands, allowing those water bodies to be destroyed or polluted without any meaningful restrictions.

The loss of protections triggered by today’s rule will ultimately accelerate the extinction of more than 75 endangered species, including Chiricahua leopard frogs, steelhead trout and yellow-billed cuckoos.

“This sickening gift to polluters will allow wetlands, streams and rivers across a vast stretch of America to be obliterated with pollution,” said Brett Hartl, government affairs director at the Center for Biological Diversity. “People and wildlife need clean water to thrive. Destroying half of our nation’s streams and wetlands will be one of Trump’s ugliest legacies. We’ll absolutely be fighting it in court.”

Today’s final rule limits protections only to wetlands and streams that are “physically and meaningfully connected” to larger navigable bodies of water. The radical change will virtually eliminate the Clean Water Act’s protections across the arid West, from West Texas to Southern California, including most of New Mexico, Arizona and Nevada.

An analysis by the Center parallels leaked government documents that estimate the final rule will dramatically reduce Clean Water Act protections for streams and wetlands across more than 3,000 watersheds in the western United States. Arizona and New Mexico could lose protections for more than 95% of their water bodies under the rule finalized today by the Environmental Protection Agency and U.S. Army Corps of Engineers.

President Trump’s Executive Order 13778 required the federal agencies to protect only those waters that have “a relatively permanent surface connection” to a traditionally navigable body of water such as a major river — a myopic legal interpretation that ignores the complex hydrology of the arid western states. The executive order followed the minority legal view of the late Supreme Court Justice Antonin Scalia, which was never adopted by the Supreme Court.

In rushing to comply with Trump’s executive order, the agencies violated both the Endangered Species Act and National Environmental Policy Act. Both laws require the federal government to “look before you leap” and ensure that the environmental consequences of a particular action will not cause unintended environmental damage.

“This is the darkest day in the 50-year history of the Clean Water Act,” said Hartl. “Left unchecked, Trump’s giveaway to special interests will foul our water, harm human health, and condemn wildlife to extinction for generations to come.”

19 thoughts on “Trump Administration Slashes Protections for Millions of Acres of Streams, Wetlands”

  1. I question the CBD analysis, at least for CA. CA’s Water Code trumps (no pun intended) the CWA, and is much more protective. That rather large blob of brown for the lower half of CA just doesn’t apply given the water quality requirements for CA.

    • The LA Times reported on the impact to California, in a story titled, “California will be hit hard as Trump administration weakens clean water protections:”

      Defying environmentalists and public health advocates, the Trump administration on Thursday announced the replacement of Obama-era water protections with a significantly weaker set of regulations that lifts limits on how much pollution can be dumped into small streams and wetlands.

      The changes to the Clean Water Act’s protections are expected to hit California and other Western states especially hard.

      Federal data suggest 81% of streams in the Southwest would lose long-held protections, including tributaries to major waterways that millions of people rely on for drinking water….

      Under the new rule, polluters will no longer need a permit to release contaminated water into so-called ephemeral streams — sometimes called washes or arroyos — where water flows only occasionally because of rainstorms and snowmelt. Wetlands that aren’t immediately adjacent to protected waters will also lose federal safeguards.

      Both of these features are common in Western states, and scientists say they are likely to become more so as warming temperatures make a dry climate drier….

      In California, two out of three of the state’s freshwater streams could lose federal protection.

      Yet the state is better positioned than others to weather the changes. Waters that lose protection under the Trump rule will still be covered under California law. And state regulators have strengthened protections for wetlands and streams in anticipation of the federal rollback.

      Most states don’t have nearly enough money or environmental expertise to fill the void created by vastly scaled-down federal regulations.

      In New Mexico, environmental regulators estimate that the new rule could leave 96% of the state’s waterways and wetlands unprotected from pollution, including waters that flow into the iconic Rio Grande. The state does not have its own regulations to replace those lost in the rollback, making it particularly vulnerable.

      • It seems to me that New Mexico could easily develop legislation, however they want to do it, if that is what they want to do. For partisan watchers: NM legislature has a majority of Ds in both houses and the governor is a D as well.

        • Your ability to consistently shrug off constant attempts to weaken, gut and undermine the bedrock environmental laws of the United States of America never ceases to amaze me, Sharon.

          • “constant attempts to weaken, gut and undermine the bedrock environmental laws of the United States of America” is a bit extreme.

            When some administrations come in they rewrite rules (not statutes) in the interests of the folks who helped elect them (environmental groups or companies). When the next different color administration they try to change them back to something more in their interests. Or the groups not liking the new reg go to court based on whether in fact there has been “weakening or gutting” of a statute.

            Bottom line- if they are going against the statute “enough” that is a court case.

            So I’m not “shrugging off attempts to weaken… laws” I’m just being realistic about what is a law and what is a regulation. Appropriate regulation, in my experience, necessarily has some back and forth between the regulators and the regulated.

            • Yes, the “constant attempts to weaken, gut and undermine the bedrock environmental laws of the United States of America” is a bit extreme.

  2. So yes … in a theoretical scenario where the Porter Cologne Water Quality Control Act doesn’t exist, this would ravage California.

  3. I once again stand amazed at how quickly CBD gets their perspective out. Truly impressive.

    Judging by the few short blurbs out from “the other side” of this issue I’m guessing AG and properly rights interests are in the process of digesting the potential impacts, the inevitable challenges and communicating to their members.

    The American Farm Bureau Federation has this: New Clean Water Rule Provides Clarity, Certainty to Farmers and Ranchers

    It might be a while before we get more from those stakeholders. Also, E&E News’s Greenwire had a story by Ariel Wittenberg if anyone has access.

    Upon skimming the new Rule, I was fondly reminded of Chuck Cushman with the American Land Rights Association. I suppose Cushman wasn’t the most well-regarded of those opposed to the expansion of EPA’s wetland jurisdiction, but he was by far the most indefatigable.

    Cushman passed away just over a year ago. I bet his spirit is sporting a YUGE grin right now.

    • Brian- Here’s the E&E News Story:
      The Trump administration’s final rollback of Clean Water Act protections will bring “clarity and certainty” to landowners, EPA Administrator Andrew Wheeler said today.

      “My hope is that homebuilders and land developers across the country can refocus on building communities instead of meeting with lawyers,” he told the National Association of Home Builders’ annual conference in Las Vegas.

      The Trump administration has long said that its rollback is necessary because previous definitions of Waters of the U.S. were too confusing for landowners to understand on their own.

      Hydrologists, though, have disputed whether the Trump rule, as proposed in December 2018, was actually as easy to interpret as the administration claimed (Greenwire, Feb. 18, 2019).

      While still an unprecedented rollback in Clean Water Act protections, the final version of the Navigable Waters Protection Rule released today includes some small but significant changes from the draft version that could clear up some confusion.

      The final rule would erase protections for more than half the nation’s wetlands and more than 18% of streams that flow only in response to rainfall or snowmelt.

      But tweaks between the draft and final versions create some loopholes allowing some otherwise excluded water bodies to be protected under specific circumstances.

      The draft version of the rule, for example, would have only protected wetlands that physically abut larger waterways and have a surface water connection to them in a “typical year.”

      To be protected by the final rule, wetlands still must have a surface water connection to larger waterways in a “typical year” but don’t necessarily have to be touching them.

      That means, for example, that wetlands separated from a river by a levee or a berm could be protected under the Trump rule if there is “regular surface communication” between the two via a culvert or some other means of ensuring that the river and wetlands are not totally disconnected, a senior EPA official told reporters this afternoon.

      Similarly, wetlands that are near rivers could be protected under the final rule if that river is known to regularly flood and connect with the wetlands.

      “If that happens in a typical year, those wetlands are jurisdictional,” the EPA official said.

      Another tweak between the proposed and final rules would account for situations in which ephemeral streams fed only by rainwater are intermediaries between those that flow more regularly.

      The final rule would eliminate protections for ephemeral streams but keeps them for those with intermittent or constant flows.

      As proposed, however, the regulation would have eliminated protections for any perennial or intermittent waterways that flowed into ephemeral streams. Although the final rule still doesn’t protect the ephemeral waterways, it would maintain federal jurisdiction over any perennial or intermittent stretches upstream of them.

      “Ephemeral reaches don’t break jurisdiction if the upstream water can contribute downstream water in a typical year,” the EPA official said.

      The rule explains that the changes were included to “address questions and concerns regarding under what circumstances a natural or artificial feature severed upstream jurisdiction.”

      The tweaks are unlikely to assuage Trump administration critics who have slammed the rollbacks.

      “Both the draft and the final rule are very significant retreats from federal jurisdiction, there’s no question about that,” said Mark Ryan, a former water attorney with EPA’s Region 10. “To make up numbers, if the draft rule was a 60% retreat, the final is a 58% retreat. So it’s slightly less bad than the draft, but it’s still bad.”

      The changes are also unlikely to change the opinions of groups like the National Association of Home Builders that have pushed the Trump administration to repeal previous Obama-era Clean Water Act protections and write its own regulations.

      Attendees at the homebuilders conference were quick to applaud when Wheeler took aim at the Obama-era rule, calling it the “most recent in a long list of actions that expanded the federal government’s reach.”

      The Obama-era EPA “claimed it was in the interest of water quality,” Wheeler said. “But it was really about power. Power in the hands of the federal government.”

      Wheeler said the Trump administration’s repeal of WOTUS “put an end to the Obama administration’s power grab.”

  4. Here’s the take on the Trump administration’s latest environmental and clean water rollback from award-winning journalist Ian James of the Arizona Republic. James is a longtime environmental reporter who has focused on climate change, water and the environment in Arizona, California and throughout the West.

    Sharon might be interested to know that in Arizona the GOP currently controls the state House and the state Senate and the governor is Republican…So I guess Arizona is SOL when it comes to protecting clean water from ephemeral and intermittent streams, which make up a bulk of waterways in Arizona.

    Trump rollback of clean water rules leaves many Arizona streams without protections

    The Trump administration is rolling back protections for streams and wetlands, adopting a new rule that will drop federal clean-water safeguards for many creeks and washes across Arizona and the Southwest.

    The nationwide change scraps a regulation that was adopted during the Obama administration and replaces it with a weaker rule that could help fast-track development and mining projects and could leave some streams and washes vulnerable to being filled in or polluted.

    Environmental groups said the revised rule, released Thursday, would gut protections under the Clean Water Act and vowed to challenge the new rule in court.

    The change will especially affect regulation of ephemeral streams and washes, which flow intermittently when it rains but otherwise sit dry much of the year.

    In Arizona, that may mean that the vast majority of “waters” that were previously regulated by the federal government — from arroyos to wetlands to desert washes — no longer fall under Clean Water Act protections.

    • I think the current regulation was promulgated in 2015.. that means that they were only previously regulated that way for the last five years (or less assuming it took the EPA a while to figure out the details). Putting the change into perspective.

      I do like the fact that they say “we don’t like this new rule and we will litigate” rather than “we think they promulgated it illegally.

  5. The WaPo actually says in an article today..
    “Just this week, Trump rolled back protections for U.S. wetlands and small waterways. It is just one of dozens of environmental rules and regulations designed to mitigate the effects of climate change.”

    But if they’d checked the NY Times in 2015, it was all about pollution at the time…

    I do wish the WaPo would use editors more frequently.

    • Isn’t protecting seasonal streams (intermittent) or rain-dependent streams (ephemeral) part of a bona-fided strategy to “mitigate the effects of climate change?”

      • I think that’s stretching it… of course, anything could be stated to be good or bad for climate change depending on how you look at it and the assumptions you make.

  6. “Slashes protection” might not necessarily be accurate in this case because – unless I’m mistaken – the 2015 rule never took effect. Its implementation was blocked and the current administration rescinded the 2015 rule before court challenges were resolved.

    Part of the problem is that it took nine years for the EPA to write a rule after the previous one failed to pass legal muster, and part of the problem is the 2015 rule seemed to completely disregard Justice Kennedy’s opinion from the 2006 Rapanos case.

    I highly doubt Kennedy would have upheld the 2015 rule, and it’s even less likely his successor would.

    However noble the aims of the 2015 rule, if a waterway can’t meet the legal definition of federal waters (i.e., traditionally navigable for commerce) – or at least demonstrate a “significant nexus” to such waters, the federal government doesn’t have regulatory authority.

    Reasonable people can and do debate what constitutes a significant nexus to federal waters. In my opinion the 2015 rule went too far and the 2020 opinion doesn’t go far enough.

    A cynic might suggest both rules are more about politics than clean water. The previous administration didn’t even start rule making until after the 2012 election and waited until after the 2014 midterms to publish a rule largely unpopular in swing states. The current administration rushed an industry-friendly rule in an election year.

  7. The Obama-era EPA “claimed it was in the interest of water quality,” Wheeler said. “But it was really about power. Power in the hands of the federal government.”

    I don’t think many people want federal power for its own sake (I mean look at what that means under Trump). In this case they want federal power to protect water quality in states that don’t care about it (in part because water flows across state boundaries). I agree that it is problematic for a law or regulation to pose a difficult scientific question as a basis for jurisdiction. Especially one where the “typical year” it’s based on is going to change with the climate.

    Thanks Kevin for refreshing my memory about the court history (an issue I don’t follow as closely as some others). I assume that “significant nexus” must be interpreted under the Clean Water Act in terms of how much water pollution is likely to flow between them. (Unfortunately, the debate seems to be about the significance of how much area is affected.)

    You might think this would be a great example of using the NEPA process to determine what the actual effects of this change in regulations would be. However, NEPA doesn’t apply to EPA’s Clean Water Act administration. (An EA was produced for 2015 regulations because the Corps of Engineers was a joint signatory.) I would like to hear more about what kind of and how much pollution is going to be allowed as a result of all this new freedom to pollute.

  8. I thought I’d tack this on here, because there is a lot of discussion about the role of the EPA’s Science Advisory Board, and how its advice would be treated by the inevitable court involvement (language below is quoted).

    In several spots throughout its revamped WOTUS definition, EPA and the Army Corps mention the SAB’s recommendations to adhere to the latest science on the connectivity of smaller resources to larger waterways that informed the Obama administration’s rule. “[S]cience alone cannot dictate where to draw the line between Federal and State waters, as those are legal distinctions that have been established within the overall framework and construct of the CWA,” the agencies wrote in their rule.

    Some judges may find that position persuasive, said Larry Liebesman, a former Justice Department attorney who now works at the consulting firm Dawson & Associates. But, he continued, the chances are higher that a court might find that EPA did not sufficiently address the SAB’s concerns when it finalized the rule before the board had finished reviewing it.

    Patrick Parenteau of Vermont Law School said he sees lessons for EPA in a 1997 case in which a federal judge chastised the Fish and Wildlife Service for ignoring the advice of its own experts in deciding not to list the Canada lynx under the Endangered Species Act. “That’s the kind of policing the foul lines that the courts are willing to engage in,” Parenteau said. “They’re not going to say that the experts decide or that their opinions control,” he said, “but they’re going to require explanation if you run counter to that.”


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