The Clean Water Regulations of 2015 are No Longer, Thanks to the EPA

The Clean Water Regulations of 2015 are No Longer, Thanks to the EPA

In September of 2019, the Trump administration announced the real of one of the Obama-era’s biggest environmental actions: The Waters of the United States rules, among others. Now, it’s a new game for chemical use.

The 2015 Waters of the United States rule addressed chemicals and water contamination by placing limits on chemicals used near streams, wetlands, and other bodies of water. The EPA repealed this measure in September of 2019, and it means one big thing: farmers have fewer restrictions on farming techniques they no longer need a permit to discharge “potentially harmful substances” into streams and wetlands.

The rollback changes the regulation of chemicals in and near national water sources, but it will also largely affect future Supreme Court decisions on water laws. According to one New York Times article, the Obama administration originally implemented the rule in response to a Supreme Court decision that aimed to expand the legal definition of “waters of the United States” under the 1972 Clean Water Act. However, the EPA rollback of the rule last September narrows the definition.

Now, the government cannot as easily regulate chemicals entering water sources, and farmers and landowners can do as they please with more ease. The narrowing of the legal definition has inspired critics to speak about the fears of certain consequences, namely the fact that it will likely be difficult for future administrations to undo the change because “the ideological balance of the Supreme Court has shifted to the right.”

What does this conversation have to do with partisan divides in the United States, though? Well, water use on large swaths of land is often a question for farmers and the industry. Patrick Parenteau, a professor of environmental law at the Vermont Law School, outlines how farmers’ water jurisdiction is a part of the question:

“For conservative states and leaders who hold the view that the Clean Water Act has become burdensome for farmers and the industry, ‘this is an opportunity to really drive a stake through the heart of federal water protection.’”

President Trump has centralized his campaign around a pledge to address the needs of farmers, rural landowners, and real estate developers—especially the idea that these groups should be able to use their properties “as they see fit.”

Other members of Trump’s administration have rallied behind the rollback, saying it is a beginning of an end of an “egregious power-grab,” according to Andrew Wheeler, the administrator of the EPA. Wheeler said the rollback would mean “farmers, property owners and businesses will spend less time and money determinizing whether they need a federal permit and more time building infrastructure.”

Yet, while some policy makers and farmers in the industry are angered by the ways the 2015 rule restricts their property jurisdiction, many environmentalists warn of the larger repercussions.
Their argument? This is a question for safe drinking water, sustainable regulations, and a plan for an environmental future—not what a farmer wants out of ease and budget.

“With many of our cities and towns living with unsafe drinking water, now is not the time to cut back on clean water enforcement,” said Laura Rubin, director of the Healing Our Waters-Great Lakes Coalition.

The 2015 rule of the Obama administration was intended to limit pollution in about 60 percent of the nation’s bodies of water, protecting sources of drinking water for about one-third of the United States. The rule was issued under the 1972 Clean Water Act which gave the federal government broad authority to limit pollution in major water bodies like Chesapeake Bay, the Mississippi River and Puget Sound, as well as streams and wetlands that drain into those larger bodies.

The rule was also intended to help clarify legal confusion about clean water protection. Two Supreme Court cases in 2001 and 2006 created significant legal confusion about which smaller streams and headwaters and wetlands fell under federal authority. The 2015 rule hoped to limit confusion by giving the government jurisdiction.

What kind of jurisdiction did the rule enforce? Under the rule, farmers using land near streams and wetlands were restricted from doing certain kinds of plowing and from planting certain crops. They needed to obtain EPA permits in order to use chemical pesticides and fertilizers that could have run off into those bodies of water.

Now, those restrictions are lifted.

The Waters of the United States rule is not the only environmental protections being eliminated under Trump’s EPA oversight. The administration is rushing to clear the way for oil exploration in the Artic National Wildlife Refuge, for instance. It also aims to weaken protections for endangered species in order to help drillers. Additionally, in December 2017, President Trump embarked on the biggest land protection rollback in United States history when he reduced two national monuments in Utah by roughly two million acres. Other topics being challenged by Trump’s administration include coal-fired power plants, automobile tailpipes, methane emissions, and asbestos and chemical hazards.

The rollback last September will still retain federal protections for larger bodies of water, the rivers that drain into them, and wetlands that are directly adjacent to those bodies. However, it will strip away protections for streams that run only during or after rainfalls, and for wetlands that are not adjacent to major bodies of water or connected to them by a surface channel.

To Trump-lobbying farmers and landowners, this is a victory. To non-Trump-supporting farmers and landowners, along with environmentalists, this is hugely alarming. Lawyers say the interim period between the repeal of the 2015 rule and the new Trump rule could lead to regulatory confusion for farmers and landowners.

“The clean water rule represented solid science and smart public policy. Where it has been enforced, it has protected important waterways and wetlands, providing certainty to all stakeholders,” said Jon Devine, director of federal water policy at the Natural Resources Defense Council.

“The Obama clean water rule had very clear lines defining which waters are protected by the Clean Water Act, versus which waters are not, while repealing the rule means replacing those lines with case-by-case calls,” said Blan Holman, an expert on water regulations with the Southern Environmental Law Center. The administration, Holman said, is replacing “clear, bright-line rules” with a case-by-case system.

This means a number of lawsuits around the country are expected to pop up. And it means more arguments will come over an increasingly debated, precious resource: water.  

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