During one of his elaborate “signing ceremonies,” President Donald Trump signed an executive order that would roll back Clean Water Rule strengthened under President Obama. The president, echoing Republican criticism of the rule, said that the expansion of the EPA’s authority to regulate waterways was crippling to the economy.
“It’s a horrible, horrible rule. Has sort of a nice name, but everything else is bad,” the president said, surrounded by legislators, real estate developers, and a rare White House appearance for First Lady Melania Trump.
The Clean Water Act says that the EPA can regulate navigable waters, meaning waters that truly affect interstate commerce. But a few years ago, the EPA decided that navigable waters can mean nearly every puddle or every ditch on a farmer’s land, or any place else that they decide.
He called the rule a “power grab” by the EPA, and said that the agency–under administrator Scott Pruitt–would seek to roll back the rules that harm the economy. Of course, many environmental activists see this as simply a justification to weaken environmental protections and undermine the agency, possibly fatally.
The rule change happened after a Supreme Court case which had contradicting opinions written by Justices Kennedy and Scalia. The latter argued that wetlands only directly connected to “navigable waterways” were protected, while Kennedy thought the EPA had broader authority.
In 2015, the Obama administration sought to clarify the “mess” that wetlands jurisdiction became in the wake of this ruling. (Despite the fact that the rule has only existed since about the time he entered the campaign, President Trump said he’d been hearing about it “for years.’)
What the rule sought to accomplish, via Vox:
- All tributaries to navigable rivers used to be evaluated on a case-by-case basis. Under the new rule, they’re now automatically protected if they have a bed, a bank, and a high-water mark. This includes many streams that are dry for part of the year, but not ordinary runoff. Waterways without these features are still dealt with case-by-case.
- Wetlands and ponds are now automatically covered if they’re within 100 feet or within the 100-year floodplain of a protected waterway. Otherwise, case by case.
- Certain “isolated” waters that are not connected to navigable waters now get automatic protection if they have a “significant nexus” to protected waters — like the vernal pools of California.
Contrary to what President Trump claimed, a recent study found that farmers and ranchers actually had more control over their land after the 2015 rule than before it. This finding could be relevant to what actually happens as a result of this order.
Any attempt to repeal the rule or significantly weaken it will likely be challenged in federal court, and if the court goes with Justice Kennedy’s view over Scalia’s the EPA may end up keeping this authority. Of course, they won’t have to enforce it.
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Featured image via screengrab