Yesterday the Trump administration announced it was repealing the Clean Water Rule in an attempt to scale back the waterways and wetlands that are protected from pollution by federal law.
Why is this important for water quality in the U.S., and particularly the South which has more stream miles and wetland acres than any other region in the country?
The Clean Water Act has been America’s cornerstone environmental protection since it was passed in 1972. Yet there has always been some uncertainty about how far those protections extend and exactly which bodies of water are protected. This question has been the focus of legal challenges, agency rulemakings, and proposed legislation all intended to clarify what waters are covered.
The Trump administration acted yesterday to push forward a new “Trump Rule” that would drastically reduce the waterways protected from pollution with an approach based on the “Scalia Test,” an opinion by Justice Antonin Scalia in a 2006 Supreme Court case that would strike categories of waters and wetlands from Clean Water Act protections – and which was rejected by a majority of the Court.
As a first step, the administration is proposed to repeal the 2015 Clean Water Rule clarifying those protections, despite the fact that the Supreme Court ruled in April that court proceedings on the rule should continue. The administration’s repeal means we revert back to a “Repeal Rule” – what was in place before the Clean Water Rule and which offers a similar scope of protection but with less clarity.
What’s the difference between all these rules and what does it mean for clean water protections in our country?
A quick study of the chart below reveals a Trump Rule would leave millions of acres of Southern wetlands and streams unprotected from pollution that could affect our drinking water supplies, our favorite fishing and hunting spots, our swimming holes, and our tourist economies.
Clean Water Rule
At a glance
|Overview||Passed by EPA under the Obama administration in 2015 to provide clarity on which waters receive protections under the Clean Water Act and thus make the permit program less burdensome||Previous guidance for what waters receive protections from a 1986 rule and 2008 guidance from the EPA under the George W. Bush administration – now proposed as a repeal of the Clean Water Rule||EPA under the Trump administration intends to replace the Clean Water Rule with a new rule that would significantly limit the waters that would be protected following an opinion by Justice Scalia in a Supreme Court decision opposed by a majority on the court|
|In effect||Aug 2015-Oct 2015 before it was temporarily put on hold due to legal challenges||2008 – Aug 2015
Oct 2015 – Present, pending court rulings
|Never accepted by a court or in legislation passed by Congress|
|Rulemaking Process||There was a 200-day comment period, and the EPA received more than a million comments (87% supporting the rule) and held more than 400 stakeholder meetings. The final rule also incorporates more than 1,200 peer reviewed scientific studies.||The Trump administration has set a 30-day period that will deny many people the right to comment on a complex rule that both replaces the Clean Water Rule and codifies the 1986 rule, and the EPA is refusing to take public comment on the actual rules it proposes to adopt.||Not yet proposed|
|Surface waters that are navigable *Includes oceans, sounds, and tidal waters and navigable lakes, rivers, streams, and impoundments||Protected||Protected||Protected|
|Wetlands adjacent to navigable waters||Protected||Protected if surface or shallow subsurface connection to navigable waters||Unprotected unless continuous surface connection to navigable waters|
|Continuously flowing tributaries that contribute flow to navigable waters||Protected||Protected||Protected|
|Wetlands adjacent to continuously flowing tributaries||Protected||Protected if surface or shallow subsurface connection to navigable waters||Unprotected unless continuous surface connection to navigable waters|
|Intermittently flowing tributaries (tributaries that flow seasonally or after storms)||Protected if tributary stream has identifiable bed, bank, and high water mark||Protected if “relatively permanent” or significant hydrological or ecological nexus* to navigable water||Unprotected unless regularly flowing|
|Wetlands adjacent to intermittently flowing tributaries||Protected||Protected if intermittent tributary is "relatively permanent" or significant hydrological or ecological nexus* to navigable water||Unprotected unless tributary is regularly flowing and wetland has surface connection|
|Wetlands not adjacent to navigable waters or tributaries to navigable waters||Protected if (1) a 1-in-100-year floodplain or within 4,000 feet of a navigable water or tributary and (2) analysis finds significant hydrological or ecological nexus* to a navigable water||Protected if site-specific analysis shows significant hydrological or ecological nexus* to navigable waters, regularly flowing tributaries, or tributaries with a significant hydrological or ecological nexus||Unprotected|
|Significant regional wetland systems not adjacent to navigable waters or tributaries to navigable waters||Protected if prairie potholes, western vernal pools, Carolina and Delmarva bays, Texas coastal prairie wetlands, and pocosins unless analysis shows none of the wetlands in the watershed have a significant hydrological or ecological nexus* to a navigable water||Protected if the wetland has significant hydrological or ecological nexus* to navigable water, regularly flowing tributaries, or tributaries with a significant hydrological or ecological nexus to a navigable water||
*A nexus is defined as a connection, or series of connections, linking two or more things.