Trump Earth Day Announcements: Watered Down Clean Water Rule and Parks to Re-Open

On the eve of Earth Day, the Trump Administration published its final rule greatly narrowing the scope of the landmark Clean Water Act (CWA), known as the “waters of the U.S.” or WOTUS rule. Environmental groups immediately announced their intention to challenge it in court and thereby limit its impact.  And yesterday, President Trump announced that the closed National Parks will soon re-open and the Fourth of July celebration on the Mall will go on despite social distancing requirements.

Why This Matters: The new rule puts in place an interpretation of the CWA first articulated by the late Supreme Court Justice Antonin Scalia, even though it is not clear that Congress intended it to have such a limited scope.  Challenges to the new rule will start in federal courts around the country, and different courts will apply it differently to distinct water bodies, resulting in a “patchwork mess” according to Mark Ryan, an attorney formerly at the Environmental Protection Agency.  The more expansive Obama Administration version of the rule met this fate — it only covered 22 states because of lawsuits.  Just like the mess created by the lack of a consistent rule closing National Parks due to COVID.

Will WOTUS Ever Clear Up?

Lawyers say the WOTUS rule challenges are likely to drag on through the election and beyond.  Worse, even if Vice President Biden were elected and put the Obama broader rule back in place, the challenges would again limit that rule’s applicability.  And the rule’s scope will always be somewhat dependent upon an agency interpretation based on the facts — the size and depth and other characteristics of each water body.  What is clear is that this narrower rule will provide much less protection from pollution and put the public’s health at greater risk.  An attorney for the Southern Environmental Law Center told E&E News, “[a]s communities throughout the country battle a growing public health crisis, this administration is intent on stripping away long-established protections against pollution in the rivers and lakes Americans rely on for drinking water.”  And the EPA’s own science advisory board was highly critical of the Trump administration rule saying the rule is not rooted in up-to-date science because it should not exclude from the rule’s scope groundwater, ephemeral streams, and wetlands that connect to major bodies of water underground.

Parks to Reopen — But When?

According to The Hill, the President made vague promises about re-opening those National Parks that had closed.  He was also unclear what re-opening would mean — whether facilities within parks would re-open as well.  “Thanks to our significant progress against the invisible enemy, I am pleased to announce that in line with my administration’s guidelines for opening up America again we will begin to reopen our national parks and public lands for the American people to enjoy,” The Hill reported President Trump said during a tree-planting ceremony at the White House to mark both Earth Day and Arbor Day, which is tomorrow.

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