The Trump administration is faulting its predecessor for overemphasizing science in writing a 2015 Clean Water Act rule aimed at defining what isolated wetlands and waterways deserve automatic federal regulatory protection.
At issue: the Obama-era EPA and Army Corps of Engineers’ 400-page review of research on how wetlands and small streams affect downstream rivers, lakes and estuaries.
As it proposes to repeal the Clean Water Rule, or Waters of the U.S. (WOTUS), regulation, the Trump-led agencies say the previous administration gave too much weight to the "Connectivity Report."
"The agencies now believe that they previously placed too much emphasis on the information and conclusions of the Connectivity Report when setting jurisdictional lines in the 2015 Rule, relying on its environmental conclusions in place of interpreting the statutory text and other indicia of Congressional intent to ensure that the agencies’ regulations comport with their statutory authority to regulate," the proposed repeal says.
The Trump administration instead says EPA and the Army Corps should put more weight on the legal history of the Clean Water Rule.
Former EPA officials say the Trump administration approach is a head-scratcher.
"It’s baffling for a science-based agency to say that they relied too much on science," said Ken Kopocis, who led the Obama EPA’s Office of Water.
Said Betsy Southerland, who resigned last year from her post leading the water office’s Office of Science and Technology: "EPA has always relied on both science and the law in developing regulations. However, when the statute and case law are as ambiguous as they are regarding Waters of the U.S., EPA must rely on science to provide the clarity missing from the law in order to avoid an arbitrary and capricious determination."
The question of what wetlands and small waterways should be covered by the Clean Water Act has a famously muddled history.
The Clean Water Act itself says it should apply to "navigable waters of the United States," which it defines only as "waters of the United States."
The Supreme Court has attempted to decide what that phrase means in three separate cases, the most recent of which — Rapanos v. United States in 2006 — ended in an infamous 4-1-4 split decision.
The Obama Clean Water Rule was based on Justice Anthony Kennedy’s stand-alone opinion in Rapanos. He wrote that wetlands and waterways should be afforded federal protection if they have a chemical, biological or hydrological connection — what he called a "significant nexus" — to downstream waters.
He also wrote that individual wetlands should be federally protected if they, "alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical and biological integrity of other covered waters."
With the Obama-era Connectivity Report, the Clean Water Rule applied Kennedy’s reasoning to "isolated wetlands" like prairie potholes, Delmarva and Carolina bays, pocosins, vernal pools in California, and Texas coastal prairie wetlands (Greenwire, Oct. 2, 2017).
It said those wetlands should be considered on a case-by-case basis but also as a system, with regulators assessing the importance of an individual pothole on its own and also as part of the ecosystem, determining the impact on downstream waters in combination with other prairie potholes in the watershed.
Waters within the 100-year floodplain or within 4,000 feet of the high tide line would be treated similarly under the Obama approach.
Now the Trump administration says that approach is "an expansive reading" of Kennedy’s opinion.
The Army Corps and EPA say the regulation "does not give sufficient effect to the term ‘navigable’" in the Clean Water Act, relying too much on the Connectivity Report instead.
The agencies also say the Clean Water Rule did not put enough weight on one part of the Clean Water Act preamble, which says states and tribes should retain authority over their land and water resources.
‘This is unique’
Daren Bakst, senior research fellow in agricultural policy at the conservative Heritage Foundation, agrees with the Trump administration’s approach.
"The agencies need to worry primarily about the statute and the Constitution, not what the report said," he said. "Science informs policymakers, it does not give us an answer to policy questions."
That argument could be convincing to a judge, said Larry Liebesman, a former Department of Justice attorney who’s now a senior adviser with the Washington water resources firm Dawson & Associates.
Liebesman notes the question of Clean Water Act jurisdiction is more complicated than other areas of environmental law where science is more obviously weighted heavily.
"This is unique. It isn’t a standard for contaminants in drinking water where you only are considering scientific principles," he said. "This is rule that creates a legal definition, so you’re wrapping science into this process that also includes case law, history and cooperative federalism."
But even as the Trump administration’s proposal argues too much weight was placed on the Connectivity Report, it also argues the Obama administration didn’t follow that report closely enough.
EPA and the Army Corps "are concerned," the Trump proposal says, that the Clean Water Rule’s treatment of "similarly situated" waters "may not be explainable by the scientific literature, including the Connectivity Report."
Vermont Law School professor Pat Parenteau says the Clean Water Rule itself acknowledges what the Trump agencies say in its preamble, which notes that while the report described a "continuum" of connectivity where wetlands could have significant or minuscule impacts on downstream waters, "the science does not provide a precise point along the continuum" where a "significant nexus" begins or ends.
Parenteau argues that the biggest flaw of the proposed repeal isn’t that it accuses the Obama administration of putting too much weight in science but that the Trump administration doesn’t explain how science should fit into the question of Clean Water Act jurisdiction.
"I don’t see them saying, ‘Here is an appropriate way to balance questions of science and law,’" he said.