President Donald Trump has directed the Environmental Protection Agency to roll back a clean water regulation that Colorado ranchers have criticized as overly burdensome but environmentalists and outdoor enthusiasts say is essential to protecting the health of the state’s rivers and streams.
Trump’s executive order Tuesday concerns what is known as the Waters of the United States rule, a regulation passed in May 2015 under President Barack Obama that clarified the scope of waters protected under the 1972 Clean Water Act. Calling Obama’s expanded regulations “a disaster” and “one of the worst examples of federal regulation,” Trump said his order was “paving the way for the elimination” of the rule, which had yet to be implemented.
Obama’s rule set about clarifying which U.S. waters are protected from pollution under the Clean Water Act. Until 2015, the Act protected “navigable waters, interstate waters and the territorial sea” and also, on a case-by-case basis, waters that were upstream given that protecting major waterways requires looking after what flows into them. Obama’s rule expanded protections to include most tributaries, wetlands near floodplains and even some “isolated” waters — those that don’t actually flow into protected waters, but are near them.
Trump’s order seeks to scale back this definition to be more in line with an opinion issued by the late U.S. Supreme Court Justice Antonin Scalia in a 2006 case about the Clean Water Act. In ruling that Clean Water Act protections did not extend to a particular wetland, Scalia defined protected waters as “relatively permanent, standing or continuously flowing bodies of water.” Obama’s rule, in contrast, relied more heavily on the definition presented in Justice Anthony Kennedy’s concurring opinion. The Supreme Court could not reach a majority on that case, ruling 4-1-4.
Rob Harris, a senior attorney at Western Resource Advocates, says that under Scalia’s definition, impermanent and seasonal streams and waterways, such as those that rely on snowmelt or are particularly vulnerable to drought, may not be protected. That poses a particular threat in Colorado because, Harris says, only 15 miles of Colorado rivers and streams are what might be considered traditionally navigable waters. “The other 95,000 stream miles are not,” he said.
Trump said he was signing the order on behalf of farmers, ranchers and agricultural workers, who find the rule overly burdensome. “It’s prohibiting them from being allowed to do what they’re supposed to be doing,” he said, adding that the Waters of the U.S. rule applies to “nearly every puddle or every ditch on a farmer’s land, or anyplace else that they decide.” As an example, Trump said, “If you want to build a new home, for example, you have to worry about getting hit with a huge fine if you fill in as much as a puddle — just a puddle — on your lot.”
But that’s not true. The rule, in fact, clarified that the Clean Water Act does not apply to puddles, nor to groundwater, artificial ponds and lakes, artificial dryland irrigation or to many kinds of ditches. Trump’s remarks upon signing the rule, saying that “In one case in a Wyoming, a rancher was fined $37,000 a day by the EPA for digging a small watering hole for his cattle” and that “I’ve been hearing about it for years and years” could not have been as a result of the Waters in the U.S. rule, which, again, had not yet gone into effect.
Still, farmers and ranchers said the rule was unclear about what agricultural-related waters were included. They worried, as Politico reported, that the rule would “give bureaucrats carte blanche to swoop in and penalize landowners every time a cow walks through a ditch.”
“We wanted to see the rule rescinded. We asked that it be reconsidered,” said Terry Fankhauser, the executive vice president of the Colorado Cattlemen’s Association which contributed funds to a lawsuit filed by a national cattlemen’s association and several commodities groups challenging the Obama administration’s expanded definition of which bodies of water should be protected.
Fankhauser said groups like his worked with the Environmental Protection Agency to try to find answers, but remained unclear about what enforcement might look like. He thought the best answer would be to redefine the terms and reconsider the rule itself before finalizing it.
Environmentalists worry that Trump’s order will hurt Colorado’s water quality and wildlife by narrowing which waterways receive protection from pollution. “The people of the American West want clean, healthy rivers, not a return to the days when rivers in America caught fire and were severely polluted and dead,” Gary Wockner, director of Save The Colorado, said in a statement. The way he sees it, basing water protections on Scalia’s definition could leave the Poudre River, the South Platte River and rivers across the Front Range vulnerable to pollution not just from agriculture, but from coal-fired power plants, refineries and even city wastewater treatment facilities.
Sportsmen, too, are concerned about the environmental effects of the order. David Nickum, the executive director of Colorado Trout Unlimited, said that anglers know clean water starts at the source. “If we degrade and pollute those headwaters, it is only a matter of time until the next snowmelt or rainstorm sends those impacts down into our larger rivers and water supplies.” Chris Wood, the CEO of Trout Unlimited, said that altering the rule to follow Scalia’s definition would cause 60 percent of U.S. streams and 20 million acres of wetlands would lose protection of the Clean Water Act. That would be, he said, “an unmitigated disaster for fish and wildlife, hunting and fishing, and clean water.”
But Fankhauser insists that clean water matters to cattlemen, too — “it’s not only a right, it’s an obligation to us” — and said calling Trump’s order a rollback of the Clean Water Act was a “pretty significant overstatement.” Rather, he says, it’s an opportunity to come up with a solution that protects the environment without strapping the agricultural sector with unnecessary regulations.
Trump can’t simply undo Obama-era water quality protections with his executive order. His EPA chief Scott Pruitt will have to undergo a lengthy federal rulemaking process to repeal the Waters of the U.S. rule. And, as Vox reports, federal courts have historically interpreted the rule as Kennedy did, rather than along Scalia’s narrower view. [ed. emphasis mine]
Colorado, in the meantime, has the ability to enact more stringent water regulations. Harris, who hopes either the state legislature or the Colorado Department of Public Health (CDPHE) will take on the task, wondered, “Are we going to wait until something bad happens and our waterways are impacted, or are we going to protect our waterways before the problem even starts?”
Jacque Montgomery, spokesperson for Gov. John Hickenlooper, says the administration wasn’t completely satisfied with the Waters of the U.S. rule, but that “the complete absence of a rule means ambiguity and uncertainty” regarding which waters apply. Said Montgomery, “Colorado aims to keep protecting our watersheds and streams,” and will follow through on the watershed and stream management plans called for in the state water plan. Her remarks, says CDPHE spokesman Mark Salley, speak for that organization as well.
Trout Unlimited’s Nickum predicted a lengthy battle in Colorado from groups looking to push against what they see as a threat to their clean water.
“You can expect Colorado sportsmen and women to be aggressively involved, fighting for the headwater streams and wetlands that are essential for healthy fish and wildlife habitat,” he said.