EPA Removes Clean Water Act Protections from Many Wetlands and Streams

EPA Removes Clean Water Act Protections from Many Wetlands and Streams

This article was originally published in September, 2019, and has been updated to reflected current events. 

On Jan. 23, the Trump Administration’s EPA and Army Corps announced new, weaker regulations regarding enforcement of the 1972 Clean Water Act. The federal agencies say it was necessary to repeal Obama-era rules that limited filling and pollution of wetlands and ephemeral streams, but the conservation community is gravely concerned about the effects these relaxed regulations will have on fish and wildlife.

The leaders of a number of sportsmen’s groups, including the Theodore Roosevelt Conservation Partnership, National Wildlife Federation, Trout Unlimited, Fly Fishers International, Backcountry Hunters & Anglers, Izaak Walton League, and the American Fisheries Society issued a joint statement strongly opposing this decision.

“The Administration’s action will leave roughly 50 percent of wetlands and 60 percent of stream miles across the country vulnerable to pollution and destruction. The 2015 Clean Water Rule had clarified longstanding Clean Water Act protections for millions of acres of wetlands and many headwater streams that protect communities from flooding, contribute to the drinking water supplies of one in three Americans, and provide essential fish and wildlife habitat that supports a robust outdoor recreation economy worth $887 billion,” the statement reads.

The disagreement over this issue hinges on ambiguous language within the original legislation, specifically the poorly defined phrase “Waters of the United States.” The Clean Water Act, as it was first written, failed to adequately state which water bodies fall under its jurisdiction. The law’s language extends protections to all navigable waters and those with a “significant nexus” to navigable waters. That vague wording has led to an enormous amount of confusion and conflict.

Federal agencies and lower courts for many years assumed the act applied to wetlands and intermittently flowing streams, until two notoriously muddy Supreme Court cases in 2001 and 2008 cast doubt on the extent of the law, suggesting that only waters with permanent, surface connections to navigable waters were protected. In 2009, the Obama administration directed the EPA and Army Corps to write new rules to clarify and simplify which waterways were protected from chemical pollution and backfilling. That administration issued the new rules in 2015, protecting more waterways and wetlands with significant hydrological and ecological connections to navigable waters.

The oil, gas, development, and agriculture industries pushed back hard on the new regulations. The American Farm Bureau Federation launched their successful “Ditch the Rule” campaign, alleging that it meant the federal government would be meddling in what farmers did with ditches on their own property—despite the fact that ditches and canals for ranching and agriculture were explicitly excluded from the 2015 rule. Thirteen states sued to block implementation of the rule, and after a number of court battles, it eventually went into effect in 22 states but not the others, leading to a regulatory nightmare.

Donald Trump spoke frequently about the federal overreach of Obama’s Clean Water Rule while on the campaign trail and signed an executive order shortly after taking office directing the EPA and Army Corps to rescind and replace the rule. They completed the withdrawal last September and issued new rules last week.

“Today, EPA and the Department of the Army finalized a rule to repeal the previous administration’s overreach in the federal regulation of U.S. waters and recodify the longstanding and familiar regulatory text that previously existed,” said EPA Administrator Andrew Wheeler in September. “Today’s Step 1 action fulfills a key promise of President Trump and sets the stage for Step 2 – a new WOTUS definition that will provide greater regulatory certainty for farmers, landowners, home builders, and developers nationwide.”

Conservation and sportsmen’s groups have been calling foul on the Trump Administration’s rollback since it began but raised their disapproval to a cacophonous level in recent months.

“It is difficult to overstate the importance of small headwater streams. Think of headwater streams as capillaries. Capillaries keep the body alive by providing oxygen to the bloodstream,” Chris Wood, president and CEO of Trout Unlimited, told MeatEater. “Small headwater streams play the same role as capillaries but for fish. They provide nutrients and spawning and rearing habitat for fish. Simply stated, headwater streams keep larger downstream rivers alive. For the government to neglect or ignore them is foolhardy.”

And it’s not just fish that will be affected by increased development and pollution on non-navigable waters.

“I think the waterfowlers in particular should give a shit because these temporary wetlands are absolutely essential for our duck populations in particular and they no longer enjoy protections,” Land Tawney, president and CEO of Backcountry Hunters & Anglers, told MeatEater. “I think intuitively we all know that our entire wetland system is connected, but what this rule does is it makes decisions on what is connected and what is not.”

MeatEater’s conservation director, Ryan Callaghan, shares those concerns about the effects of relaxed regulations on backfilling wetlands and the use of dangerous chemicals and fertilizers near intermittent streams. He says the administration couched all their messaging for the plan in a desire to help small-time farmers, but that’s not really who the new rules benefit.

“According to the financial analysis that the administration released, small farmers represent a tiny share of the permits this rollback addresses,” Callaghan said. “The real winners are the oil and gas companies, mining companies, and real estate developers who apply for the vast majority of permits near streams, wetlands, and creeks.”

PBS reviewed the 300-page financial analysis the administration released last month and found that an average of 3,163 wetlands permits were issued every year from 2011 to 2015. Farmers represented only eight per year.

“The fact that these arguments keep getting presented as fights between landowner rights and habitat quality really pisses me off,” Callaghan said. “This rule change has little to do with those folks and everything to do with big extractive and development industries. Property rights are sacred in this county, but they shouldn’t extend to having the right to pollute water that we all share collectively. What’s that saying about stuff rolling downhill?”


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