• Water

The Failings of Trump’s Navigable Waters Rule Laid Bare

August 14, 2020

• Center for Progressive Reform
• Clean Water Act
• Navigable Waters
• rollback
• Waters of the U.S. Rule
• wetlands
• WOTUS

Georgia salt marsh      Photo: Trish Hartmann, Wikimedia Commons

By William Buzbee

On Thursday, Science magazine published an article [abstract available, article itself behind paywall] I co-authored with a number of distinguished environmental science professors from around the country. In the article, we dissect President Trump’s newly implemented navigable waters rule and show the remarkable disregard for science that the Trump administration displayed in its dismantling of the 2015 Clean Water Rule, which had protected millions of miles of rivers and acres of wetlands from polluters.

The article makes clear that the Trump administration’s Navigable Waters Protection Rule (NWPR), which just went into effect in June, has gutted protections for whole categories of waters despite the Clean Water Act’s express mandate that regulators protect the “chemical, physical, and biological integrity” of the nation’s waters.

The Trump Administration’s new deregulatory action ignores or downplays what the best science establishes about the connectivity and functions of waters previously protected. The Obama-era rule was based heavily on science laid out in an EPA report, The Connectivity Report, that comprehensively compiled state-of-the-art peer-reviewed science on types of waters and their roles.

As we explained in detail in the Science article, the Trump administration rejected this science-based approach. Instead, it explicitly built its rule on a Supreme Court opinion by Justice Antonin Scalia that advocated a cramped reading of the Clean Water Act by focusing on permanent and continuous surface water connections and paying little heed to the interconnected nature of waterways and the important functions of wetlands, tributaries, and ephemeral waterways.

This choice by Trump’s overwhelmingly deregulatory agencies was predictable from a policy point of view but is surprisingly shaky from a legal perspective. The Scalia opinion’s limitations on protected waters in the 2006 Rapanos case did not garner majority support, and, indeed, was expressly rejected by a Court majority. Five justices instead called for far more expansive protections focused on the functions of waters, as explained in an opinion by Justice Anthony Kennedy that four dissenters embraced as appropriate, although they would have protected even more. For more than a decade after the Rapanos decision, federal regulators and litigators interpreted statutory, regulatory, and case law as extending protections to all of the waters Justice Kennedy and the four dissenters said are protected, as well as the far narrower set of waters Scalia’s opinion would protect.

The impact of the Trump rule will be enormous. Our Science article’s key contribution is to document just how enormous, and to expose just how much actual science the administration ignored in its haste to undo the Obama protections for waterways. Federal law allows states to extend protections beyond the federal rule, but the anti-regulation mood in some state capitals has led many states to adopt laws precluding protections that extend beyond those of federal regulations, and other states have historically been more lax in protecting waterways.

The result is sadly predictable: The nation’s waters will be degraded, imperiling drinking water quality, harming ecosystems, and allowing industrial discharges or filling of what are now newly federally unprotected waters. If unprotected, polluters will no longer need a federal pollution permit to dump their waste into our waterways, effectively transferring the cost of cleaning up their own pollution to the rest of us, a cost some of us will pay with our health, and even our lives.

Perhaps most troubling, the NWPR’s approach, like the Scalia language it largely follows, will massively eliminate protections for previously protected waters in arid regions of the American West and Southwest. Where water is most scarce and valuable for ecosystems and human uses, federal protections are now weakest. And with the climate crisis expanding areas of water scarcity, this new rule will, over time, have even more extensive harmful effects.

In sum, this new Trump rollback is based on unsound, cursory reference to science, built on a legally erroneous foundation, and will, as our article clarifies and documents, cause massive harms to the nation’s invaluable waters, especially where most scarce and important.

William Buzbee is a professor of law at Georgetown University Law Center and one of the nation’s leading experts in the fields of environmental and administrative law. 

This blog first appeared on the Center for Progressive Reform Blog website and is reprinted here with their and the author’s permission.  The Center for Progressive Reform (CPR) is a network of more than 60 acclaimed scholars from across the United States who work with a professional staff of policy analysts and communications experts to advocate for robust protections for health, safety, and the environment.

Read more about CPR’s work on the Waters of the United States and the Clean Water Rule, here.

Read more about their work on Clean Science, here.