Last week, the Supreme Court and the Environmental Protection Agency put out new and potentially conflicting guidelines regarding the interpretation and enforcement of the 1972 Clean Water Act.
On Tuesday, April 21, the Trump Administration’s EPA redefined which wetlands and waterways qualify for protection under the Clean Water Act, drastically narrowing the criteria. Two days later, on Thursday, April 23, the Supreme Court ruled on a Hawaiian groundwater pollution case, offering a new, broader test for activities that would require CWA permits. The judicial and executive branches of the U.S. government are both seeking to clarify what, exactly, the guidelines are for managing pollution that ends up in our water. If the notoriously muddy and fluid history of the Clean Water Act is any indication, however, neither of these interpretations is likely to endure.
Last September, the Trump Administration announced it would be rolling back the Obama Administration’s regulations regarding the enforcement of the CWA, known as the Waters of the United States Rule. It completed the rollback in January. Read MeatEater’s article about that action here.
The previous administration’s EPA created a broad mandate that ephemeral streams and wetlands merited protection from dredging, backfilling, and pollution under the CWA. That sounds good, but the changes were so sweeping and disruptive that, even though they were on the books for nearly five years, their actual enforcement didn’t last very long. Thirty states immediately filed lawsuits seeking to halt the rules, and 42 days after they went into effect, the regulations were stayed by the Sixth Circuit Court across more than half of the country.
Industries like oil and gas, mining, development, ranching, and agriculture felt the regulations were too onerous and aggressively lobbied to get rid of them altogether. When Trump won the election in 2016, his administration sought to re-interpret the CWA to be far more permissive of waste disposal and began working to garner public support.
While the public campaign to undo WOTUS, “Ditch the Rule,” focused on small farmers, it ignored the fact that stock tanks, irrigation, and ditches were already exempt from the rule. And the government’s own financial analysis found that out of an average of 3,163 CWA filling permits issued from 2011 to 2015, only about eight per year went to farmers, according to PBS.
So, the Obama EPA passed a sweeping overhaul of the CWA and conservationists cheered . . . but it lasted less than a month and a half. Now, the Trump EPA has issued a replacement called the Navigable Waters Protection Rule, and conservatives and industry groups are celebrating, but it seems destined to languish in the same judicial purgatory.
In effect, the new regulations remove CWA protection from most of the nation’s wetlands and any other waters without a year-round, surface water connection to major waterways. The new regulations open the door to a tidal wave of lawsuits from environmental groups and Democratic-led states. Those suits must now be filed in federal district courts, meaning that judges will likely issue stays that prevent the rule from going into effect in certain states, like what happened with the Obama rule—leading to a regulatory patchwork and further uncertainty. That litigation will almost surely continue past the November election, possibly restarting the whole rulemaking process completely should the presidential regime change.
In the meantime, many hunters and anglers and members of the conservation community worry about what this new rule, and the broader uncertainty around the CWA, might mean for fish and wildlife.
“The Navigable Waters Protection Rule leaves the majority of U.S. wetlands and almost 20% of our country’s streams without Clean Water Act protection,” Melinda Kassen, water lawyer and senior counsel for the Theodore Roosevelt Conservation Partnership, told MeatEater. “That’s almost all the prairie potholes in the Upper Midwest—our duck factory. That’s more than 90% of Arizona’s desert stream miles. That’s so many of the headwaters critical to trout.”
The Trump administration insists that states will step up to protect wetlands with the new dearth of federal oversight. Kassen says that in the 50-year history of the Clean Water Act, only two states have established wetlands programs of their own. It’s unlikely more will follow in the near future.
“And now, with all of the economic impact of coronavirus, it is even less likely that states will find cash for new wetlands protection programs,” Kassen said. “Hunters and anglers must hope this new rule never gets implemented on the ground. We already know many states and water protection groups will challenge the rule in court. What we really need is to find a durable, common-sense solution that maintains our fish and wildlife habitat. This rule certainly is not it!”
Only two days after the EPA’s rollout of the new CWA rules, the Supreme Court issued a ruling that seems to highlight the need for centrism in interpreting the CWA. At their Lahaina Wastewater Treatment Plant, Maui County had been disposing of some four million gallons of treated sewage every day by injecting it deep underground, only a half mile from the Pacific Ocean. Some of that waste was traveling through groundwater and showing up in the ocean, prompting environmental groups to sue and leading to the case of County of Maui v. Hawai’i Wildlife Fund. The Trump Administration filed an amicus brief in support of Maui County when the case reached the Supreme Court, affirming their stance in the Navigable Waters Protection Rule that pollution should only be regulated when a surface water connection exists from the source to a large waterbody.
Ultimately, the high court rejected both sides of the case as being too extreme. In his majority opinion, Justice Breyer, joined by justices Kavanaugh and Roberts from the court’s conservative wing, argued that on one hand, the county and the Trump administration’s positions would allow a loophole for polluters nationwide to dispose of their waste out of sight, though it would still be able to resurface and cause health issues for humans and wildlife. On the other hand, the opposition’s position, affirmed by the Ninth Circuit Court, would require permits for any pollution traveling anywhere, “even bizarre, circumstances, such as for pollutants carried to navigable waters on a bird’s feathers…” Breyer wrote.
Instead, the 6-3 majority justices offered a new test for the application of Clean Water Act permitting in such instances: “the functional equivalent of a direct discharge.” The opinion offered several instances of how that might take place, but mostly affirmed that pollution cannot be injected underground or disposed of in a way where it is likely to end up in navigable waters or the ocean. The case now heads back to the Ninth Circuit for consideration in light of the new test.
“The Supreme Court’s 6-3 decision in Maui is a win for sportsmen and women and for common sense,” Kassen said. “In mining country, for example, if a company pours polluted water from tailings into a pond that could then leak into a trout stream at the edge of its property, they would be required to not only get a discharge permit but also treat their pollution so that it doesn’t kill fish.”
Though the decision is seen as a victory for environmental groups and a possible crack in the Trump Administrations new CWA regulations, it does not solve the underlying problem: the continual shifting of one of our most important environmental protections. That, ultimately, has to be accomplished through legislative consensus.
This perpetual instability and uncertainty surrounding the Clean Water Act isn’t helpful to anyone—not industries who have to plan projects years ahead; not landowners who want to understand what they can or can’t do on their land and how their neighbors’ actions may affect the quality of the water on their property; and certainly not the wildlife, fish, and habitat that depend on healthy and stable ecosystems. Additionally, the fact that the Supreme Court is having to step in and re-interpret pendulous and constantly changing environmental law sets a problematic precedent and highlights the need for moderate legislation.
“It’s not a hard argument to make that we need goods, jobs, and food in this country,” said Ryan Callaghan, MeatEater conservation director. “I also don’t think it’s a hard argument to make that this can be done responsibly for the long term. But it’s hard to have a meaningful conversation that starts with a statement that water doesn’t flow downstream, and pollution won’t flow past your neighbor’s three-strand barbed wire fence.
“The EPA’s new rule is just another step to nowhere. It’s a favor to one side and a stick in the eye to the other, not an effort toward the common goal of sustainable water resources and allowing the long-term viability of industry in this country, especially food production. Someday we need to find a middle ground on the application of the Clean Water Act that works alright for everyone instead of swinging wildly back and forth every few years.”
Feature image by Sam Lungren.