The US Environmental Protection Agency (EPA) and Army Corps of Engineers released a finalized version of their new “Navigable Waters Protection Rule” on Thursday, capping President Donald Trump’s attempts to roll back Obama-era pollution regulations under the Clean Water Act. The replacement rule follows the repeal of the earlier “Waters of the United States” rule that had clarified the extent of federal jurisdiction over streams, wetlands, and other water bodies. In response to complaints by those in the fossil fuel industries, real estate developers, and farmers, the Trump administration’s new regulations will significantly shrink the extent of the waterways in the US that the EPA will be allowed to regulate.
The new rule narrows the category of “waters of the United States” and removes protections that earlier regulations had created for wetlands that are not directly connected to larger bodies of water and for small tributaries and headwater streams. An EPA factsheet explaining the changes states that the re-write “fulfilled yet another promise of President Trump” and that “[f]or the first time, the agencies are streamlining the definition so that it includes four simple categories of jurisdictional waters.” The agencies contend that concerns about reducing federal jurisdiction “are incorrect because they are based on data that is too inaccurate and speculative to be meaningful.”
The rule change is certain to prompt legal challenge by environmental groups, however, who contend that the rule exposes important and pristine waterways to degradation and ignores or misconstrues the relevant science. Last year, members of the EPA’s Science Advisory Board drafted a letter to agency head Andrew Wheeler pointing out “that aspects of the proposed rule are in conflict with established science … and the objectives of the Clean Water Act.” The letter questioned the justifications for new definitions in the now-finalized rule and lamented its possible consequences. “The departure of the proposed Rule from EPA recognized science threatens to weaken protection of the nation’s waters by disregarding the established connectivity of ground waters and by failing to protect ephemeral streams and wetlands which connect to navigable waters below the surface. These changes are proposed without a fully supportable scientific basis, while potentially introducing substantial new risks to human and environmental health.”
These statements, materials from public comment on the rule, and other findings will likely support upcoming lawsuits by state attorneys general and environmental groups that seek to invalidate the rule change.