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What happens if the Trump Administration scraps the Waters of the U.S. Rule?

Nov 29, 2016

On the campaign trail, President-elect Donald Trump said that he would rescind the Waters of the U.S. Rule, which outlines what kinds of water bodies are federally protected.

Environmentalists say the rule is necessary to safeguard our ecosystems and drinking water.

But many in the agriculture industry don’t like the rule—they say it’s an over-reach, and they’re worried it will give the federal government more say over what they can (and can’t) do on their fields.

The Waters of the U.S. Rule (a.k.a. the Clean Water Rule) isn’t actually being enforced right now. There were so many challenges to the rule when it was enacted in August of 2015, that it’s been stayed in the 6th Circuit Court of Appeals.

But many farmers are still worried. That’s because the rule protects certain wetlands and small streams from development.

An uncertain future

Doug Darling is the co-owner of Darling Farms, in Maybee, Michigan. He’s also a director at-large for the Michigan Farm Bureau.

He says the farm has been in his family for 183 years. He's the sixth generation to work on the farm. When you talk to him, you really understand that—like most farms—this isn’t just his business, it’s his livelihood. It’s his life.

So when there's added uncertainty, it makes him nervous.

The first thing he showed me on his farm was his barn, home to several friendly cats, as well as the farm's massive equipment for planting and harvesting. He says corn planters can cost up to $120,000, sprayers up to $300,000, and combines up to $700,000.

He explains "we have a great deal of investment, capital tied up" in the farm.  

Darling becomes concerned when he sees potential new regulations that could affect how he does business, and in turn, his bottom line. He says the water rule is too vague, and that gets to him.

He shows me a spot on his property that's part of the Stony Creek watershed.

“When the crick floods, it can either back up my tile, or it will spill out, and flow across the field and then flow down, it goes across the neighbor’s farm, cuts across the road, it has actually has even washed out a bridge once,” he says.

Darling worries that, under the rule, he could face more regulation.

“If someone from the EPA was driving by here, saw the water submerged in here, they could then say this is 'Waters of the U.S.,' they could then come in and require regulations,” he says.

Environmentalists say farmers should actually welcome the rule.

Jan Goldman-Carter is with the National Wildlife Federation.

“Agricultural activities are covered, if anything, less right now under the Clean Water Rule than they have been, certainly over time,” she says.

Goldman-Carter says the rule is actually in place to ease the concerns of farmers and developers, so they know what’s federally protected, and what’s not.

Here's how the EPA explains what the rule does:

  • Clearly defines and protects tributaries that impact the health of downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
  • Provides certainty in how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.
  • Protects the nation’s regional water treasures. Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
  • Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.
  • Maintains the status of waters within Municipal Separate Storm Sewer Systems. The rule does not change how those waters are treated and encourages the use of green infrastructure.
  • Reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.

The future of the Waters of the U.S. Rule

But it turns out, President-elect Trump can’t easily just get rid of the Waters of the U.S. Rule.

The EPA's argument for why the Clean Water Rule is important.
Credit EPA

Nick Schroeck is an assistant environmental law professor at Wayne State University. He says there are basically four ways Trump could undermine the rule.

First, the federal government could stop defending the rule in court.

“And that does change the game a little bit, because although there are some environmental groups that are part of that litigation, and they would presumably continue to litigate, it makes a big difference when the agency that made the rule decides to stop defending it in court,” he says.

 

Second, the Trump administration could seek to rescind or alter the rule, but that would be a long, drawn-out process.

“That would be very complicated for the Waters of the U.S. Rule, because there was a big, huge, massive amount of evidence that was provided as part of the rule-making process originally, and all of that information would have to be in some way refuted to allow the agency to go ahead and rescind the rule,” he says.

 

Schroeck says Congress could make sweeping changes to the nation’s water rules.

And, he says, there’s one more scenario.

“That of course is the budget, the power of the purse, and if funding is cut significantly for our federal agencies like the Corps of Engineers or EPA, that do permitting for wetlands, and do wetlands enforcement, if their budget is significantly cut, that can have, obviously, impacts on the type of enforcement and monitoring that those agencies are able to conduct,” says Schroeck.

But even if the rule does go away, he says Michigan has some decent water protections in place.

“We do have a law here in Michigan that’s pretty good for wetlands, but you know, we have to be careful about not giving away the store at the federal level, because that could have some bad implications here in Michigan,” he says.

What Schroeck means is this: if federal rules, such as the Waters of the U.S. Rule, go away, Michigan has some good laws to protect water here. But if the rules aren’t as good in neighboring states, the health of our waters could still be affected.

People like Jan Goldman-Carter from the National Wildlife Federation have an outlook that's a bit more dire. She fears the Trump Administration will actually go after the Clean Water Act itself, the federal law that's been around since the 1970s. And she's concerned that under the Trump Administration, funding for the Environmental Protection Agency will be cut.

Tom Zimnicki is the agriculture policy director for the Michigan Environmental Council. He’s 26, and although he is worried about how the Trump Administration might affect groups like his, he’s excited to be working at a group like the MEC right now.  

“This is an opportunity to galvanize folks at the state level,” he says.

Zimnicki says he wants to reach out to people at the local level and inform them about the importance of protecting the environment.

He says, if the Waters of the U.S. Rule is rolled back, much of the responsibility for protecting waterways will fall on the state.

“I’m excited to be working at that state level, where I think a lot of these priorities, and a lot of this movement from an environmental standpoint is going to have to happen,” he says.