Clean Water Act Changes Put Wetlands in the Crosshairs

The Trump administration has finalized its deconstruction of clean water rules that buffered streams and wetlands from some forms of pollution. As a result, polluters will no longer need a permit to discharge potentially harmful substances into these waters.

It's also one more step in the redefinition of what constitutes "waters of the United States" under the Clean Water Act.

The new rules, which were written by the Environmental Protection Agency (EPA) and the U.S. Army Corp of Engineers, will limit or remove protections for vernal pools — bodies of water that appear only after heavy seasonal rains — and wetlands and streams that are not "physically and meaningfully connected" to larger navigable bodies of water. The connections must also be on the surface; subsurface connections between waterways, connections protected under regulations from the administrations of Barack Obama and George W. Bush, will no longer be recognized.

This move has long been a priority for the Trump administration, which repealed the 2015 rule in September, describing it as an "overreach." The newly finalized rules were unveiled Jan. 23 by EPA Administrator Andrew Wheeler at the National Association of Home Builders International Builders' Show in Las Vegas.

Why the rule change?

The new language is seen as a rebuttal to 2015 definitions laid out by the Obama administration. These definitions provided vernal pools and smaller waterways strong protections from development and pollution, like industrial and agricultural runoff. The rules, which were never enacted nationally due to various legal proceedings, were decried by critics as confusing. A coalition of farmers, landowners and real estate developers also considered the move a federal land grab that infringed on rights to use their land how they saw fit.

The Obama administration's definitions were a 2016 campaign talking point for President Trump, who referred to them as "one of the worst examples of federal regulation" and vowed to review and repeal them. In February 2017, Trump issued an executive order calling for that process to begin. By July 2018, the administration was moving forward with the repeal, saying the earlier definitions placed too much emphasis on scientific surveys and not enough on the legal history of the Clean Water Act. In December, the new proposal was spelled out, followed by a 60-day comment period.

The Trump administration bases its rules on the opinion of Supreme Court Justice Antonin Scalia in the 2006 Supreme Court case Rapanos v. United States, a case about federal jurisdiction over isolated wetlands. Scalia believed the Clean Water Act only applied to "relatively permanent" bodies of water, with the other bodies falling under state jurisdiction. Scalia's opinion was not adopted by the court itself.

The Clean Water Act was a point of contention long before the Obama administration tackled it. The primary point of focus has been what is considered a navigable body of water, and how those ephemeral pools and streams fit into the rules. NPR offers a good survey of the debate leading up to the 2017 executive order.

For critics of the 2015 definitions, the rule changes ease what they consider unfair regulatory burdens.

Wheeler described the 2015 rule as a "power grab" at a news conference last year, arguing that the changes would mean "farmers, property owners and businesses will spend less time and money determining whether they need a federal permit and more time building infrastructure."

What the rule change means for wetlands and vernal pools

The areas in brown are places that will no longer be covered by Clean Water Act protections. (Image: The Center for Biological Diversity)

The rules and changing definitions could have significant impacts on wetlands and water bodies that are seasonal rather than permanent. The Center for Biological Diversity noted during the proposal period that the rules "would virtually eliminate the Clean Water Act's protections across the arid West, from West Texas to Southern California, including most of New Mexico, Arizona and Nevada." The map above, created by the nonprofit group, shows areas that will lose protections under the new rules.

The potential ramifications of the rule changes are far-reaching, affecting wildlife, the environment and humans alike, especially in the areas mentioned above. According to a study conducted during the Obama administration, 60% of all U.S. waterways, and 81% in the arid West, are ephemeral or flow seasonally. Current EPA officials dispute these numbers, saying there isn't a way to confirm them. Officials did not offer other numbers.

Wetlands and vernal pools provide vital support for wildlife. Some amphibians, in particular, rely on vernal pools to safely reproduce since, due to the ephemeral nature of the pools, fish aren't there to eat them or their eggs. Additionally, some amphibians must spawn in the same place they were spawned themselves. Migratory birds also rely on them for water and food since plants that are dormant during fall and winter will flourish following the rains, attracting insects (which the amphibians also enjoy eating).

Developing or polluting these areas could destroy these habitats. The Center for Biological Diversity says the proposed rules could accelerate the extinction of more than 75 different species, including the steelhead trout and the California tiger salamander.

"This sickening gift to polluters will result in more dangerous toxic pollution dumped into waterways across a vast stretch of America," said Brett Hartl, government affairs director at the center, in 2019. "The Trump administration’s radical proposal would destroy millions of acres of wetlands, pushing imperiled species like steelhead trout closer to extinction."

Polluting these ephemeral bodies of water and wetlands could also have impacts on drinking water. The Los Angeles Times reports that, per another Obama-era EPA study, one in three Americans get at least some of their drinking water from ephemeral streams. Additionally, despite the proposed rules no longer acknowledging subsurface connections from wetlands and seasonal bodies of water to navigable waters, the pollution could still leak into those permanent bodies of water, affecting those habitats as well.

"They're trying to sidestep the science," Mark Ryan, a water expert who used to work at the EPA, told The Guardian when the proposal was rolled out. "The science is pretty clear that whatever happens at the top of the watershed affects the bottom of the watershed."

Many states, like California, have their own, more stringent rules in place, or adopted the Obama-era rules as their own. Other states, however, simply aren't prepared to take over or replace regulatory systems established by previous federal guidelines, some of which date back to the George H.W. Bush administration and were expanded by George W. Bush.

"It is hard to overstate the impact of this," Blan Holman, managing attorney at the Southern Environmental Law Center, told the Times. "This would be taking a sledgehammer to the Clean Water Act and rolling things back to a place we haven't been since it was passed [in 1972]. It is a huge threat to water quality across the country."