Trump aims to remove waterway protections, aiding developers

Detroit News staff and wire

Washington – The Trump administration appears ready to move ahead with its plan to remove protections for some of the nation’s millions of miles of streams, wetlands and arroyos, completing one of its most far-reaching environmental rollbacks.

The changes, promised by President Donald Trump in his first weeks in office, would sharply scale back the government’s interpretation of which waterways qualify for protection against pollution and development under the half-century-old Clean Water Act. Trump says he is targeting federal rules and regulations that impose unnecessary burdens on businesses.

In this Tuesday, Dec. 11, 2018, file photo, an egret looks for food along Valhalla Pond in Riverview, Fla. The Trump administration was expected to announce completion as soon as Thursday, Jan. 23, 2020, of one of its most momentous environmental rollbacks, removing federal protections for millions of miles of the country's streams, arroyos and wetlands.

The leaders of the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers announced the final rule Thursday, saying it clarified a murky prior regulation, protected the nation’s navigable waters from pollution and would aid economic growth.

“After decades of landowners relying on expensive attorneys to determine what water on their land may or may not fall under federal regulations," EPA Administrator Andrew Wheeler said in a statement, the new rule "strikes the proper balance between Washington and the states in managing land and water resources while protecting our nation’s navigable waters."

The changes had been sought by industry, developers and farmers, but opposed by environmental advocates and public health officials. They say the changes would make it harder to maintain a clean water supply for the American public and would threaten habitat and wildlife.

The Trump administration says the changes would allow farmers to plow their fields without fear of unintentionally straying over the banks of a federally protected dry creek, bog or ditch. The rule change stems in part from a 2006 Michigan case involving two property owners that divided the U.S. Supreme Court.

But the government’s own figures show it is real estate developers and those in other nonfarm business sectors that take out the most permits for impinging on wetlands and waterways, and stand to reap the biggest regulatory and financial relief.

"Clean water is a basic need," said Laura Rubin, director of the Healing Our Waters — Great Lakes Coalition based in Ann Arbor. “And with many of our towns and cities still living with unsafe drinking water, now is not the time to cut back on clean water enforcement. We need more — not less — protection for clean water.”

But the Michigan Farm Bureau welcomed the final rule as supporting clean water and replacing an old "dangerous" regulation.

“Through phone calls, text messages, and letters to both Congress and federal agencies, Farm Bureau members strongly objected to the previous rule and advocated for common-sense regulation that clearly recognizes the work farmers do daily to protect water and conserve our natural resources, said John Kran, national legislative counsel for the Michigan Farm Bureau.

“We applaud the work of the Trump Administration for their efforts in getting us here today.”

A draft version of the rule released earlier would end federal oversight for up to half of the nation’s wetlands, which provide buffers against flooding and climate change, and one-fifth of the country’s streams, the upstream sources of drinking water, environmental groups warned.

The rollback would be one of the most ambitious of the Trump administration’’s wide-ranging efforts in federal deregulation. While many rollback efforts have targeted regulations adopted under the Obama administration, the draft clean-water plan released earlier would lift federal protections for many waterways and wetlands that have stood under the Clean Water Act since 1986.

That includes protections for creek and river beds that run only in wet seasons or after rain or snow melt — the kind of so-called ephemeral and intermittent waterways that provide the majority of water for some dry states in the West.

Gov. Gretchen Whitmer's administration is still reviewing the new rule, said Scott Dean, a spokesman for the Michigan Department of Environment, Great Lakes and Energy. 

A conservative environmental research group welcomed the Trump rule change, but warned its language still may be murky for farms and others.

“The rule defines the limits of federal jurisdiction over waters and wetlands more carefully and lists more clearly the types of areas that are excluded from federal regulation," said Myron Ebell, director of the Competitive Enterprise Institute's Center for Energy and Environment.

"The bad old days when the Corps of Engineers used the overly broad and vague 1987 delineation manual creatively to expand federal regulation to lands that might occasionally be moist should be gone for good."  

The Trump administration decision has angered environmentalists, who warn of disaster to Great Lakes areas if the rule is changed.

"The Trump EPA’s misguided final rule removes protections for community rivers, wetlands and streams that make our communities great places to live," said Howard Learner, the executive director of the Environmental Law & Policy Center in Chicago, an environmental advocacy organization. 

"Water resources are so interconnected. To protect the Midwest’s great waterways — the Mississippi River and the Great Lakes — we need to protect the backyard brooks, community creeks and steady streams that feed them," Learner said.

Trump has portrayed farmers — a highly valued constituency of the Republican Party and one popular with the public — as the main beneficiaries of the rollback. He claimed farmers gathered around him wept with gratitude when he signed an order for the rollback in February 2017.

The federal protections keeping polluters and developers out of waterways and wetlands were “one of the most ridiculous” of all regulations, he told a farmer convention in 2019.

“It was a total kill on you and other businesses,” Trump said at that time.

The controversy involves a "waters of the United States" rule about what defines whether a waterway is large enough to qualify for federal protection under the Clean Water Act. Critics have argued federal officials expanded the definition to include ditches and even smaller waters that are private property and wouldn't be considered wetlands.

In 2006, the Supreme Court tried to clarify the issue but ended up muddying the waters. The high court overturned lower court judgments against two sets of Michigan property owners who sought to develop land designated as wetlands by the government. 

The Clean Water Act lets the federal government regulate waters that an individual can travel on from state to state. The high court said the key issue is whether the lands in question have to have a "significant nexus" to navigable waters, but left it to the lower courts to decide what that means. 

The ruling sent the two Michigan cases back to the appeals court after the property owners each spent more than a decade trying to develop the land. The ruling covered four manmade ditches or concrete drains in Macomb and Bay counties. 

The primary case involved an effort by now-deceased John Rapanos to develop 200 acres of Bay County farmland. He graded part of the property — hoping to attract a retail strip mall — without getting proper permits, the government said, and filled in 54 acres of wetlands that were at least 11 miles from "navigable water." 

When the development plans didn't pan out, he leased the land to a farmer. In 1995, Rapanos was convicted of two felony counts of discharging pollutants into "waters of the United States, that is wetlands located in Williams Township." 

The Supreme Court ruling only overturned a civil suit that the Justice Department had previously won against Rapanos and didn't affect the criminal conviction.

The other case involved June and Keith Carabell, a couple who in 1993 wanted to build about 130 condominiums on 19.6 acres in Chesterfield Township — about 15 acres of which were forested wetlands. The wetlands were adjacent to a tributary that flows to Lake St. Clair, but the wetlands didn't connect to the tributary.

Environmental groups, public health organizations and others say it’s impossible to keep downstream lakes, rivers and water supplies clean unless upstream waters are also regulated federally. The targeted regulations also protect wildlife and their habitats.

Detroit News Staff Writer Leonard N. Fleming contributed

The Associated Press contributed