AP Explains: Trump executive order on water protection

Posted at 4:09 PM, Mar 01, 2017
and last updated 2017-03-01 18:09:47-05

President Donald Trump has ordered federal agencies to rewrite an Obama administration rule that would shield many wetlands and small streams from development and pollution. Trump promised during his campaign to withdraw the measure, describing it as a classic case of federal overreach. Environmental groups say they'll fight in court to protect the rule. The likely outcome is years of continued political and legal wrangling over a long-contested issue.

Some basics on the regulation and the debate:



The Clean Water Act of 1972 empowers the federal government to protect the "waters of the United States," but which waters are under the government's jurisdiction is a fiercely contested question. Everyone agrees that navigable waters such as large rivers and lakes are covered. But the status of headwaters, streams that flow only part of the year, and wetlands that aren't directly connected to large waterways is less certain. Supreme Court rulings in 2001 and 2006 that sought to clarify the matter only added to the confusion. Under President Barack Obama, the Environmental Protection Agency and the Army Corps of Engineers crafted a regulation that was promptly challenged by more than two dozen states and business groups. The rule establishes a legal definition of protected tributaries, saying they must have physical features of flowing water such as a bed, bank and ordinary high water mark.



Organizations representing farmers, builders and property-rights advocates contend the 2015 rule imposes unfair limits on use of private lands. "A breathtaking power grab," says the Pacific Legal Foundation, which has represented opponents in lawsuits. "The rule is so broad and vague that federal regulators would be licensed to micro-manage property owners who are far away from genuinely navigable waters such as rivers, lakes or the ocean."

Farm groups say it gives regulators nearly unlimited power over virtually any wet spots, from ditches to farm ponds, leaving producers uncertain about what they can do without obtaining government permits and risking fines. When the rule was issued, the EPA said it would not extend federal control over any waters that hadn't historically been covered by the Clean Water Act and would add no new requirements for agriculture.



The EPA says about 60 percent of the river and stream miles in the Lower 48 states — about 2 million miles — are headwaters or have only intermittent flows. Environmentalists, and some hunting and fishing groups, say keeping those humble waterways intact and clean is essential to the larger downstream waters they feed. Also protected under the Obama rule are some 20 million acres of wetlands that don't have a visible connection to other waters but are vital for storing floodwaters, filtering pollutants and hosting wildlife. Among them: "prairie pothole" wetlands in the Upper Midwest that Ducks Unlimited calls "the most important and threatened waterfowl habitat in North America."



Trump instructed the EPA and the Army Corps to "rescind or revise" the rule, which can't be done quickly or easily. The Obama rule hasn't taken effect because of the dozens of lawsuits pending in the 6th U.S. Circuit Court of Appeals in Cincinnati. Separately, the Supreme Court is considering whether the 6th Circuit should have jurisdiction over those cases. Legal experts say the Trump administration likely will attempt to have the suits dismissed while it crafts a new regulation.

The president's executive order requires the agencies to follow the guidance of the late conservative Justice Antonin Scalia in producing a new definition of protected waters. In a 2006 opinion, Scalia interpreted federal jurisdiction narrowly, saying only "relatively permanent, standing or continuously flowing" waters or wetlands with a surface connection to navigable waterways were covered.

After proposing a new rule, the agencies would have to take public comments and consider them when putting together a final version. Environmental groups would be certain to challenge a rule based on the Scalia standards, saying it ignores scientific evidence.

"This is likely to take years," said Jan Goldman-Carter, an attorney for the National Wildlife Federation.