(CN) — The Trump administration’s decision to remove Clean Water Act protections for millions of miles of streams and acres of wetlands was based on distorted interpretations of scientific evidence and an uneven analysis of case law, conservation scientists and environmental law experts said in a policy article published Thursday.
The new Navigable Waters Protection Rule — initiated by President Donald Trump via executive order in 2017 — removed federal protections put in place by the Obama administration for ephemeral streams, ponds, artificial lakes and half the country’s wetlands.
The U.S. Environmental Protection Agency finalized the rule this past April, a day before Earth Day, and now calls the smaller bodies “nonjurisdictional” waters. The rule took effect June 22 and only protects "navigable" bodies of water that have a permanent hydrologic surface connection to rivers or lakes.
Republicans have praised the new rule, claiming it preserves state sovereignty and streamlines regulations by providing clear exclusions.
But the new rule ignores science and undermines federal protections in place since 1972, scientists and law experts said in the article published Thursday in the journal Science.
Mažeika Sullivan of The Ohio State University, lead author of the article, said in a statement the rule jeopardizes the biological and chemical quality of the nation's bodies of water, including those that are sources of drinking water.
"It's so important to say, right out of the gates, that the new rule does not protect water in the way that the Clean Water Act was intended to protect water," said Sullivan, who is director of the university’s Schiermeier Olentangy River Wetland Research Park.
The Trump administration’s move exposes now-unprotected waterways to harmful human activities such as unpermitted dumping of industrial waste, dredging and filling-in of bodies of water for development, experts say in the article.
The effects of such massive changes could include loss of biodiversity in waterways, increased risk of flooding and threats to drinking water and recreational fishing.
The stand-alone wetlands that are now unprotected collectively make up an approximate area the size of West Virginia, according to the article.
Under the rule, protections are also lifted for ephemeral streams that flow only after rain or snowfall, including more than 95% of Arizona's streams and tributaries — some of which flow into the Grand Canyon.
"We're talking about major rollbacks in protections that limit activities that impair, pollute and destroy these systems," Sullivan said in the statement. "And it comes at a time when we're really starting to understand multiple stressors on water — not just urbanization or climate change or pollution, but how all these factors interact.”
Experts said in the article that the new rule also undermines decades of taxpayer investment in restoring and conserving waterways and improving water quality.
"It's a travesty, not just for us now, but for future generations,” Sullivan said in the statement. “It could really be a watershed moment in that sense."
An EPA spokesperson did not immediately respond to an emailed request for comment on the article.
Legal challenges to the rule have been filed across the country since it was proposed, though courts often defer to agencies on rulemaking.
In a 2006 U.S. Supreme Court case, then-Justice Antonin Scalia argued non-navigable waters should have federal protections only if their water flow is "relatively permanent" and they have a continuous connection to traditionally protected waters.
In the same case, then-Justice Anthony Kennedy wrote that non-navigable waters should be protected if they have a "significant nexus" to a traditional navigable waterway.
Sullivan said the Trump administration rollback of the Clean Water Act is more in line with Justice Scalia’s interpretation of the law.
"So what's extremely concerning from a policy standpoint is that the federal government is, at least in part, leaving science aside," Sullivan said in the statement. "This idea of connectivity is one of the most crucial components of the science that has largely been ignored in this rule. There are magnitudes of connectivity — it could be frequency or how long it lasts. There are also different types of connectivity: biological, chemical and hydrologic.”
The Obama administration’s finalized its rule to protect tributaries and most wetlands in 2015, based on its review of more than 1,200 scientific publications and input from 49 technical experts who concluded the protections would enhance the quality of the nation’s drinking water.
Sullivan was a member of the Obama-era EPA Scientific Advisory Board that produced the scientific underpinnings of the 2015 rule.
The Trump administration must understand that even the smallest streams and wetlands are critical to supporting larger, downstream ecosystems such as rivers, lakes and reservoirs, according to the authors. Until then, they urged grassroots organizing to push federal and state agencies and watershed councils to conserve and protect all bodies of water.
"There are tendrils that extend into every aspect of our lives, from how we recreate and how we live, to our economy, with cultural implications for a lot of folks in the U.S. Water is fundamental to people's sense of place and where they belong," Sullivan said. "Everybody needs clean water, right? This isn't a political issue."
Authors of the article did not immediately respond to a request for further comment.
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
-
$48M for takings April 18, 2024
