Myths, Realities, and the Clean Water Rule Controversy

Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen.

Last Tuesday, President Trump signed an executive order directing EPA and the Army Corps of Engineers to begin work on a new rule defining the scope of federal jurisdiction under the Clean Water Act. The rule, if and when it is finalized, would replace the "Clean Water Rule" released by EPA and the Corps during the summer of 2015. Much of the political rhetoric surrounding the Clean Water Rule has suggested that the 2015 rule was responsible for massive economic impacts and that removing it will be a source of economic relief. President Trump's own remarks, for example, were riddled with such complaints. But for several years, I've been researching the implementation of federal stream and wetland protections (the results of those inquiries appear in just-published articles here and here and in an earlier article here). The truth, I've learned, bears little resemblance to President Trump's claims.

In fact, the 2015 rule has had hardly any impact. That's partly because the Sixth Circuit stayed implementation of the rule not long after it was enacted. But even if the rule had remained in force, its primary consequences would have been minor adjustments in the scope of federal jurisdiction and somewhat heightened levels of consistency and predictability. Indeed, the scope of federal jurisdiction would have been narrower than it was in 1986, when EPA and the Army Corps – overseen by the Reagan administration – last promulgated regulations defining Clean Water Act jurisdiction. The rule, in short, should not have been a big deal.

So why, then, did the rule generate a firestorm, and why has Donald Trump made replacing it such a priority? One reason is that some regulated entities have never been comfortable with the scope of Clean Water Act jurisdiction (for others, that jurisdictional scope is only a minor concern, or, if they need clean water, an important benefit). For those entities, the Obama-and-EPA-are-overregulating story was just a convenient hook upon which to hang 40 years of annoyance. The second reason is that even though jurisdictional boundaries have not expanded in decades, the thoroughness and scope of regulation within those boundaries has. It used to be fairly easy, in many parts of the country, to fill jurisdictional waters. As Clean Water Act regulation evolved, some of that ease went away. Again, this trend was not peculiar to the Obama administration, or even to the federal government; some of the changes emerged from red states and during the Bush I, Clinton, and Bush II administrations. Pinning the changes on the Obama administration is just a convenient rhetorical device.

Because the Clean Water Rule didn't actually change much, the most important part of the executive order isn't the language directing EPA and the Army Corps to rescind the old rule. Instead, it's language at the end of the order directing EPA and the Army Corps to "consider interpreting the term "navigable waters," as defined in 33 U.S.C. 1362(7), in a manner consistent with the opinion of Justice Antonin Scalia in Rapanos v. United States, 547 U.S. 715 (2006)." Justice Scalia's Rapanos standard would eliminate federal jurisdiction for any waterway that lacks a relatively continuous surface connection to navigable-in-fact waterways. In somewhat plainer English, that means the Clean Water Act would no longer protect ephemeral or intermittent wetlands and streams. That would be a drastic shift. Across the nation, a huge percentage of our streams are ephemeral or intermittent, and in drier regions, a continuous-surface-connection standard would eliminate Clean Water Act protections for nearly all aquatic features.

That drastic shift would have terrible implications for water quality. Ephemeral and intermittent streams and wetlands are not the most charismatic of environmental resources, but they are important. In recent years – particularly in the years since the Supreme Court's Rapanos decision – a growing body of scientific literature has explored the implications of tributary waterways, including intermittent and ephemeral streams, for downstream water quality. Scientists have discovered that very small tributaries play crucial roles in processing nutrients, and thus protecting downstream waterways from algae blooms and dead zones; limiting floods; recharging groundwater; sustaining steady flows; supporting biodiversity; filtering pollutants; and maintaining fluxes of sediment and debris. In simpler terms, they protect water quality, water supplies, and public safety; they make the rivers, lakes, and bays that we love places worth loving. Fill them in, and those benefits will disappear. Yet that is exactly what the new executive order asks EPA and the Army Corps to do.

(For a very partial sampling of this large body of literature, see here, here, here, or here, and for a synthesis report, see here.)

Beyond water quality, this controversy reflects a larger tension between environmental law's narratives of conflict and of collaboration. In their speeches about the Clean Water Rule, Donald Trump and the rule's other opponents have emphasized a story of less-than-zero sum conflict, in which EPA (they never mention the Corps) is driving thousands of Americans out of work for little environmental gain. It isn't just the latter part of that story that is false. One of the most striking lessons of my research on stream and wetland protection was the extent to which the Army Corps has found ways to increase regulatory protections for waterways while also finding more efficient, predictable, and low-cost ways to implement those protections. Stream and wetland protection wasn't stuck in zero-sum conflict. Instead, the environmental law of stream and wetland protection had been on a decades-long trajectory of improvement.

That trajectory can continue. I don't expect the Trump administration will help; its leaders are screamers, and screamers have no use for narratives of creative compromise or governmental improvement. But the rest of us do have use for those narratives, particularly when, as is often the case, they are true. So hopefully cooler heads will eventually prevail, and we will continue finding sensible ways to improve and protect our streams and wetlands – and the millions of people who depend upon them.