A friend recently posted a meme on social media showing a large, nasty-looking snake coiled around a streamside tree, devouring a hapless fish that swam a bit too close to the water surface.
“A brave snake saving a fish from drowning,” the meme stated. “This is how the media reports the news these days.”
We’ve definitely seen a barrage of this kind of news coverage in recent weeks, following the actions taken by the Trump administration to provide clarity and regulatory certainty in federal laws like the Endangered Species Act (ESA) and Clean Water Act (CWA).
A flurry of misinformation and “sky is falling” rhetoric has engulfed these important developments, driven by certain environmental groups and their media friends. They claim that the Trump administration is systematically dismantling these decades-old laws through policies and new proposed regulations.
The federal government’s significant presence in the West presents unique challenges for farmers and ranchers. My organization has been intimately involved with monitoring federal laws for 20 years. I feel I’m on safe ground when I say the recent Trump CWA actions are not going to wipe out drinking water supplies or reignite the Cuyahoga River — a 1969 incident that helped spark discussions leading to the passage of the CWA in 1972 — anytime soon.
Here’s what’s happening on the CWA front. The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) earlier this month finalized their repeal of the 2015 Obama-era Clean Water Rule. The 2015 rule sought to clarify which wetlands and streams were protected as “waters of the U.S.,” or WOTUS, under the CWA.
The Trump repeal is the first of two steps planned by the administration. It remedies the legal and procedural deficiencies of the 2015 Rule, addresses the extensive litigation surrounding it, and recodifies and restores a regulatory process that has been in place for years. The next step will be to rewrite the rule to provide regulatory certainty to our nation’s farmers and businesses as to the definition of WOTUS.
Irrigation ditches typically are constructed in upland areas, but frequently must connect to a “WOTUS” to either capture or return flow. Congress in the CWA deliberately exempted both the construction and maintenance of such facilities, and excluded agricultural stormwater discharges and irrigation return flows from the definition of “point source.” That latter term applies to factory and sewer treatment discharges.
The 2015 final rule itself was not crystal clear in excluding the West’s important irrigation infrastructure from CWA jurisdiction. Because the 2015 rule did not include explicit exemptions for these irrigation features, irrigators feared that litigious activists would inevitably claim that those features were subject to CWA jurisdiction. At a minimum, this could spawn years of delays (CWA permits can take a decade to secure) and lead to protracted and costly litigation. This in turn would create enormous uncertainty and potentially cripple Western agriculture, which obviously needs a reliable water supply.
The proposed Trump rule, thankfully, returns irrigation and non-tidal drainage ditches to their historically exempt status.
Critics of the Trump administration move were quick to call it a “roll back” — an “assault” on the CWA — and worked with urban media outlets to broadcast that message. One not familiar with this nation’s regime for regulation of the environment might understandably conclude that the Trump administration’s new proposal will allow unchecked pollution in our nation’s waters.
In fact, the CWA has long been widely recognized as an extremely successful statutory regime. And much of this progress was achieved under the CWA rules that were in place prior to the Obama administration’s 2015 rule.
The Trump rulemaking focuses on the 2015 rule. This new effort effectively lays out the full legal and regulatory history of the tortuous twists and turns that the interpretation of the WOTUS definition has taken over the decades. The current administration’s agencies also engaged in significant stakeholder outreach as the proposed rule was developed over the past two years.
The result is a rule which establishes a regulatory structure that moves importantly in the direction of bringing clarity to CWA regulation. It does so by establishing what categories meet the definition under WOTUS. Just as importantly, it explains which categories do not.