I’m Eileen Wray-McCann, for Circle of Blue, and here’s What’s Up with Water, your “need-to-know news” of the world’s water.

In the United States, the Trump administration last week proposed major cutbacks in federal protections for waterways. The proposal narrows the federal government’s jurisdiction by limiting the number of waterways protected under the Clean Water Act.

Limiting the reach of the Clean Water Act has been a top priority of President Trump, and the proposed rule represents a significant win for developers, farmers, mining companies, and energy firms. Supporters say the rule reduces the regulatory burden on landowners and businesses. Critics contend that it will damage waterways and return the country to an era of pollution that will be magnified by climate change.

The Washington Post reported that the Trump proposal exempts groundwater, stormwater, wastewater and land already converted for crops. It eliminates regulation of ditches other than canals, such as the Erie Canal, that are used for commercial shipping or are affected by tides. And it regulates wetlands or waterways only if they are clearly adjacent to navigable waterways or hydrologically linked through direct underground flow.

The Post added that the proposal also prevents federal action on fertilizer use that might enter small waterways. It eliminates federal oversight of gravel and sand pits, often used in fracking, and old quarries that fill with water. It could also ease restrictions on coal mining activities that cut off mountaintops and fill valleys with waste, creating ponds within the debris.

Acting EPA administrator Andrew Wheeler said the proposal makes a distinction between “intermittent” and “ephemeral” streams. Intermittent streams have defined channels, and would remain regulated. Ephemeral streams, which have depressions or swales that form only after heavy rain, would no longer be regulated.

The president of Trout Unlimited, a non-profit waterways conservation group, called the distinction ”bogus,” saying “you can’t distinguish between the two. Everything is going to find its way downstream.”

These ecological nuances have been points of contention ever since the Clean Water Act became law in 1972 during a Republican administration.

In 1977, the Environmental Protection Agency and the Army Corps of Engineers determined that the Clean Water Act covered all rivers and streams, including their tributaries. It didn’t matter if the waterways only flowed seasonally or only after rainfall or snowmelt. They also decided that federal protection extended to many wetlands adjacent to protected rivers and streams.

There were no specific distances to designate adjacent wetlands, so the Clean Water Act was vulnerable to accusations of federal overreach. And, since wetlands are often a barrier to development, there were legal challenges over wetlands protection that reached the Supreme Court, though the definition of protected waters was never resolved.

In 2015, the Obama administration worked with the Environmental Protection Agency and the Army Corps of Engineers to review the situation. It upheld the 1977 determination that the Clean Water Act applied to entire tributary systems, including adjacent wetlands. The administration set distance parameters for determining which wetlands would have federal protection.

In the spring of 2017, President Trump ordered the EPA and the Corps of Engineers to revisit the Obama rules. Trump’s EPA reached new conclusions. It decided to end protection for waterways that are “ephemeral”, even though they flow into rivers and streams and can carry pollution. This has special significance for dry areas of the Western states, where many waterways exist only when rain falls or snow melts.

The president of the American Farm Bureau Federation, Zippy Duvall, thanked President Trump for what he called “the Christmas present of a lifetime.” The Associated Press also quoted Bob Irvin, the president of the environmental group American Rivers, who said the Christmas gift went to polluters. “Americans all over the country are concerned about the safety of their drinking water,” he said, “this is not the time to be rolling back protections.”
The Clean Water Act made it illegal to pollute a “water of the United States” without a permit, but the parameters of those terms have been at the center of legal wrangling over the years. The current administration argues that the Obama-era regulations were government overreach, and burdened landowners and businesses with expensive and bureaucratic permitting processes.

President Trump has indicated that federal officials should only apply the Clean Water Act to “navigable waters.” The Post points out that no court has ruled that this is the sole deciding factor in determining protection under the Act, and that the administration might be counting on new judges to be more inclined toward this interpretation.

Jan Goldman-Carter of the National Wildlife Federation told the Associated Press that the proposed rollbacks expose waterways to increased damage from development and farming, and to the dangers of oil spills, fertilizer runoff and other pollution. She said that the Trump proposal removes federal protection for over half the wetlands in the contiguous U.S.

Environmental groups argue that isolated wetlands, rain-fed streams and washes are essential to the quality of the ecosystem, and they protect communities from severe weather that is worsening due to climate change.

The assistant EPA administrator for water, David Ross said the administration based its revisions mostly on court rulings, not on environmental impacts. “We didn’t do climate modeling,” he told AP, “It’s a legal policy construct informed by science.”

David M. [ULL-man] Uhlmann, who was chief of the environmental crimes section at the Justice Department from 2000 to 2007, questioned the rationale for weakening the Clean Water Act. In an opinion piece published by the New York Times, he accused the EPA of ignoring climate change, which will cause more storms and flooding. Those disruptive waters will mean more pollution from the “ephemeral” waterflows that would no longer have federal oversight. And that in turn will mean more danger to the health and welfare of communities dependent on rivers and streams for their water.
Mr. [ULL-man] Uhlmann also said that the EPA had no scientific basis to remove many wetlands from federal protection. He wrote “The agency is thus disregarding a basic tenet of ecology — that hydrological connections below ground matter as much as the rivers and streams we can see.” He added that the EPA would risk what he called “one of the greatest American environmental success stories: the transformation of our rivers and streams from open sewers in the 1960s and 1970s to far healthier waters today.”
The proposed revision of the Clean Water Act will be open for a 60-day comment period before it is finalized and adopted. Then, said, Ann Navaro, a natural resources lawyer in Washington, the challenges will begin.
“This will be a huge fight,” she told the Washington Post. “There will be huge pushback from a number of states and even Congress and certainly from environmental groups. I think folks are ready to do battle. We have a lot of complicated litigation to look forward to.”

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