The new rule lifts federal protections for roughly half of the country’s wetlands, according to the agency’s own internal estimates Environmental groups say this would surely accelerate the trend of lost wetlands at a time when the changing climate makes their benefits all the more important.
4) Dry, Western states will see the biggest impact
Waterways in arid regions of the country, particularly in the West, are likely to be among those most affected by the new rule, which removes federal protections for streams that flow only after rainfall. According to EPA, as much as 94 percent of Arizona’s waterways could lose Clean Water Act protection under the regulation, as well as 89 percent of Nevada’s.
The Trump administration argues that just because a waterway isn’t federally regulated doesn’t mean that it’s not protected, since states can still set more expansive protections. “Many states already have a robust network of regulations that protect their state’s waterways,” EPA Administrator Andrew Wheeler told reporters. But many states, including Arizona, have laws on the books that prevent them from regulating more stringently than the federal government and states have been cutting the budgets for their environmental agencies.
5) Après WOTUS, the deluge of lawsuits
The new rule will set off the the latest fight in a decades’ long legal brawl over the scope of the Clean Water Act, which intensified following a muddled Supreme Court decision in 2006. With environmental groups already vowing to sue, the new Trump rule will likely become quickly entangled in litigation, much as its Obama-era predecessor was.
The water law is aimed at cleaning up “navigable waters” like the Mississippi River and the Chesapeake Bay, but it is widely recognized that those can’t be protected without also restricting pollution into the streams and creeks that flow into them, as well as the wetlands that buffer them from runoff. But how far upstream the law’s protections reach has been a source of heated controversy.
In 2006, the Supreme Court issued a splintered decision in a case involving a patch of Michigan wetlands slated for development. The court’s four conservative justices, led by the late Justice Antonin Scalia, backed a narrow approach to federal jurisdiction, while the court’s four liberal justices endorsed broad federal authority. Justice Anthony Kennedy, who retired from the bench in 2018, joined the conservatives but issued his own, stand-alone opinion that set a more inclusive standard that gave federal protection to any streams and wetlands that had a “significant nexus” to navigable waters.
Federal appeals courts have found Kennedy’s opinion to be the guiding one, but barely a month after taking office, President Trump issued an executive order directing EPA and the Army Corps of Engineers, which issues certain Clean Water Act permits, to hew to Scalia’s opinion in drafting a new definition of which waterways should be protected.
6) Expect confusion on the ground
Legal experts say the Trump rule is likely to be placed on hold by federal courts in at least some states, if not nationwide, as the litigation works its way through the courts. In the meantime. developers and other industries will have to decide how much of a risk they’re willing to take.
While the Trump administration rule will technically allow them to impact many streams and wetlands without permits, Vermont Law School Professor Patrick Parenteau said that it’ll be a legal gamble for them to do so, given the legal uncertainty and the Clean Water Act’s hefty financial penalties for damaging protected waterways without a permit. Companies will have to ask themselves: “How much money is at stake and what happens if you guess wrong?” he said.
Kelsey Tamborrino contributed to this report.