The Trump administration’s unfortunate decision to rescind the Clean Water Rule

National conservation groups yesterday denounced President Donald Trump’s executive order rescinding the Obama administration’s years-in-the-making Clean Water Rule. Within minutes of the Trump administration’s decision to withdraw and replace the rule, press releases from mainstream conservation groups condemning the order were flooding my email in-box.

Trout Unlimited, the National Wildlife Foundation, the American Fly Fishing Trade Association, the Izaak Walton League of America, Backcountry Hunters and Anglers, and the Theodore Roosevelt Conservation Partnership issued a strong joint statement you can read here.

And here’s a quote that came via press release from Backcountry Hunters and Anglers Conservation Director John Gale criticizing the executive order.

“America’s hunters and anglers expect our elected leaders to make decisions that will enhance our unique legacy of wild public lands, waters, and wildlife,” Gale said. “Today’s announcement, however, reveals a willingness to jeopardize this legacy by unraveling the Clean Water Rule – a widely popular, publicly vetted approach to securing our nation’s wetlands and headwater streams and providing greater certainty to farmers and ranchers.”

“Sportsmen will not settle for watered-down protections or negligence for the habitat that supports the fish and wildlife we love to pursue,” said Whit Fosburgh, president and CEO of the Theodore Roosevelt Conservation Partnership.

Why the strong, immediate reaction? Let’s start with a little history. For 30 years, America happily bustled through some pretty incredible times of economic growth while the Clean Water Act of 1972 protected wetlands and streams.

Then in the 2000s, we had two U.S. Supreme Court rulings that muddled the definition of wetland and stream protection under the CWA – SWANCC in 2001 and Rapanos v. United States in 2006. Two presidential administrations set out to interpret the court’s ruling for their federal agencies. Even some congressmen, including former U.S. Rep. Jim Oberstar from Minnesota’s 8th District, tried to move clean water regulations back to where they were pre-2001 before the SCOTUS rulings via “America’s Commitment to Clean Water Act,” but Congress didn’t pass it.

The Bush administration never completed the rule-making process, and it took the Obama administration seven years to produce its rule in 2015. During the entire rule-making effort, groups representing agriculture mostly opposed any regulation, while sporting and conservation groups supported the final rule that was created to clarify protections for headwater streams and wetlands under the Clean Water Act.

Yesterday, however, President Trump’s executive order directed the EPA and Army Corps of Engineers to revise the 2015 rule. Most disturbingly, the order directs the agencies to consider using former Supreme Court Justice Antonin Scalia’s Rapanos minority opinion – which said that seasonal streams and many wetlands do not merit protection – as a basis for revising the rule.

There was no majority opinion in the Rapanos v. United States case of 2006, and if you want a little light reading, you can read the Rapanos case here  To summarize, Scalia basically concluded that so-called “waters of the United States” should include only relatively permanent, standing, or continuously flowing bodies of water because, according to him, that was the definition of “the waters” in Webster’s Dictionary.

Anyone who’s hunted ducks or busted a pheasant out of a cattail slough knows plenty of nonnavigable waters, like small trout streams and isolated wetlands, demand protection, too.

I interviewed Jared Mott, conservation director from the Ikes about Trump’s executive order this morning. It was no secret that Trump and most of the GOP had a problem with the Obama Clean Water Rule, Mott said, but his organization believes the Obama rule was fundamentally sound. Further delay in restoring protections for streams and wetlands risks long-term damage to water quality, habitat for fish and wildlife, and the nation’s economy, he said.

“If your goal is to protect waters and keep America’s waters clean, then this rule is a good one. Why go through the time and effort to repeal and replace it with something else that’s essentially going to do the same thing?” Mott said.

Mott added that rule wasn’t some random executive order from the Obama administration. It was the result of years of public comment and scientific scrutiny, and – like the CWA – it included exemptions for some activities, including agricultural practices.

This quote, from Obama-era EPA Administrator Gina McCarthy, argued that the rule would not unduly burden farmers: “We will protect clean water without getting in the way of farming and ranching,” McCarthy told the National Farmers Union in 2015. “Normal agriculture practices like plowing, planting, and harvesting a field have always been exempt from Clean Water Act regulation; this rule won’t change that at all.”

I found that quote via this excellent story on the CWR on High Country News.

American sportsmen can’t rely on Justice Scalia’s non-majority opinion to define waters protected by the CWA. That’s not going to be good for clean water, wildlife, or sportsmen.

“That’s what the science backs up,” Mott said. “These small wetlands and streams that may not have continuous flow all year long are hydrologically connected to these larger streams and wetlands that we think of as waters of the United States. So because they are connected, they need to be protected.”

The argument comes down to this question: “Are isolated wetlands protected or aren’t they?” Mott and others believe the science says they are. Read Scalia’s Rapanos opinion, and you’ll see he’s not buying it. That’s the unfortunate opinion the Trump administration now wants to follow.

The Trump administration must follow the Administrative Procedures Act, so there will be an opportunity for sportsmen and all citizens to chime in on this action. As soon as I receive information that a public comment process is open on this issue, I’ll be sharing links for readers via this blog.

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