Trump Administration Rolling Back Protections for Small Streams, Wetlands

Tom Johnson | June 28, 2017 | Energy & Environment
Federal repeal likely to affect New Jersey by eroding protections for headwaters that feed the drinking-water supply

small wetlands
The Trump administration yesterday formally began the process of repealing a rule that extended protections to small streams and wetlands, a step environmentalists warned could degrade water quality in New Jersey and elsewhere around the nation.

The proposal, announced by the federal Environmental Protection Agency’s Administrator Scott Pruitt during a congressional hearing, would fulfill a campaign promise by the president during his campaign last year to replace the “waters of the United States’’ rule.

The rule is a frequent target of critics as a classic case of regulatory overreach, extending the protections of the federal Clean Water Act to intermittent waterways and other wet areas that amount to not much more than puddles.

“This goes to the heart of the Clean Water Act,’’ said David Pringle, campaign director of New Jersey’s Clean Water Action. “It defines where the law is applied and where it is not. Upstream pollution impacts downstream waters.’’

Rhea Suh, president of the Natural Resources Defense Council, said the proposal strikes directly at public health. “It would strip out needed protections for the streams that feed drinking water sources for one in every three Americans,’’ Suh said.

The rollback, announced in an executive order signed by President Trump in February, is expected to be published in the Federal Register in days, which eventually will lead to a new rule replacing the regulation adopted by the Obama administration in 2015.

The repeal comes at a time when environmentalists in New Jersey have been battling the Christie administration over what they perceive as efforts to weaken environmental protections governing water quality and drinking-water supplies.
Despite protests from conservationists and lawmakers, the state Department of Environmental Protection last year adopted a massive rule that overhauled flood-hazard, water-quality and coastal-planning programs. Critics said the changes could degrade water quality and increase flooding, a contention refuted by the agency.

In addition, the DEP earlier this year proposed changes to the state’s wetlands program, streamlining permit requirements that some environmentalists say go too far in easing protections for those areas.

If the federal rule is repealed, it will remove a backstop to prevent some protections from being weakened under the proposed state rule, according to Jeff Tittel, director of the New Jersey Sierra Club.

But the issue has spurred much confusion and litigation over the years, caused, in part, by conflicting court decisions over which waterways ought to be protected. The rule has caused angst among developers, farmers and industry groups.

“With its broad definition and draconian regulation, the Waters of the U.S. rule was an attack on property rights, an affront to small businesses, and an undue burden on America’s farmers and ranchers,’’ said Craig Richardson, president of the Energy and Environment Legal Institute.

Others see the rule differently. “This is part of the Trump attack on President Obama’s environmental legacy,’’ said Doug O’Malley, director of Environment New Jersey. “It impacts New Jersey because one half of all streams in the state are intermittent. This rule is designed to protect headwater streams and wetlands.’’

If the rule is repealed, it almost certainly will face more litigation. Pringle said his national organization, Clean Water Action, is likely to wind up in court.