alt=Sofia JeremiasSALT LAKE CITY — At the end of January, while the Senate debated impeachment and the spread of the coronavirus dominated international headlines, the Environmental Protection Agency made an announcement that generated a brief moment of national coverage: It would no longer regulate a huge portion of water in the West.
The announcement fit a pattern. Since taking office, the Trump administration has tried to roll back over 90 environmental rules, regulating everything from methane emissions to fracking.
Even so, the proposed revision of waterways covered under the Clean Water Act has shocked environmentalists. If the changes survive a flood of lawsuits, it will mark the biggest rollback of federal water protections since the original law was passed in 1972.
Under the new rules, protections for ephemeral streams (those that run after rain or snowmelt), will be eliminated. In the arid West, this means most streams will no longer have federal protections. These streams provide drinking water for 1 out of 3 Americans.
Unless a state creates its own protections, industries will no longer need permits or environmental reviews before filling in certain wetlands or dumping waste in ephemeral streams. In Utah, over 90% of streams will be excluded from federal protections, although it is one of a few states that has some of its own protections put in place, according to the state’s Division of Water Quality.
The drier, arid states of the West — where sometimes-dry stream beds monopolize the landscape — stand to lose the greatest federal protections.
A study funded by the EPA in 2008 found that in Arizona 94% of the streams are ephemeral/intermittent and 89% in Nevada. In other words, the new rule will leave the waterways that dominate the West unprotected.
“Utah is really going to be hurt, just as all of the arid parts of the country are really going to be hurt by this new definition,” said Betsy Southerland, former director of science and technology in the EPA Office of Water.
She sees it as a transfer of cost from the polluters to communities downstream that will have to pay more to treat their water.
Take it to court
In the early 2000s, several Supreme Court decisions created confusion over what waters actually fell under federal jurisdiction. The standard required a waterway to be a “significant nexus” to the larger, navigable body of water (think so deep and so wide you could sail a boat on it). A wetland flowing into a river would have a “significant nexus,” but what about a wetland farther away that did not have a direct link to the river but filtered out nutrients?
In 2015, under the direction of former President Barack Obama, the EPA tried to clear up that confusion and drafted a new definition of which waters were covered under the Clean Water Act. That definition was more expansive than previous interpretations and would have protected about 60% of the water in the United States. But the new definition roiled farmers and ranchers, who worried that irrigation ditches and other sources of water on their property would be under greater federal scrutiny.
After President Donald Trump took office, he promised to once again narrow the definition of protected waters. The new rule makes good on that promise, but it hasn’t entirely cleared up the confusion over which waters fall under federal jurisdiction. Some streams that don’t run year-round will still be federally regulated, but others will not, depending on whether or not they flow directly into a river. Environmentalists say the new laws will require more case-by-case assessments of streams and wetlands to figure out whether or not they are covered.
How water flows
At the heart of the controversy is the way water flows and how the streams, wetlands and rivers of the country are all ultimately connected.
If a stream passes the “significant nexus” test, which means it is linked to a larger river or lake that is federally protected, then it too would fall under the regulation of the EPA.
The problem is scientists have found that eventually all water is connected, no matter how small or haphazardly or frequently it flows. What may look like an isolated, trickling stream can turn into a turbulent river, Zach Frankel, executive director of the Utah Rivers Council, explained.
A wetland may not be directly next to a navigable body of water, but it can absorb nutrients and contaminants that can be harmful to it. One USDA web page describes them as “kidneys of the landscape,” filtering out substances Western communities don’t want in their drinking water.
“Farmers and ranchers value clean water.” — Ron Gibson, a dairy farmer in Ogden and president of the Utah Farm Bureau
Before the EPA published its final rule, the department’s Office of Research and Development released a report concluding that the streams and wetlands no longer covered by the Clean Water Act are connected to downstream rivers and serve an important role in the watershed, even if they were not continually feeding into them.
Although the EPA rule noted that report in the final ruling, ultimately, the department wrote, they would not be relying solely on science to define what waters were protected: “science cannot dictate where to draw the line between Federal and State or tribal waters,” but rather, the definition should be grounded in the guidance of the Supreme Court.
But that guidance was never clearly settled.
Agriculture voices support
While environmentalists are alarmed by the changes, farmers and ranchers in the West see them as needed.
“The environment is so important to us,” said Ron Gibson, a dairy farmer in Ogden and president of the Utah Farm Bureau. “Farmers and ranchers value clean water.”
However, Gibson explained, they also need simpler ways to determine what is federally regulated and what is not. He felt the rule Obama proposed in 2015 was too far-reaching, a violation of his property rights.
“In a nutshell, the new federal rule clarifies and provides more certainty about when producers and water managers would need a federal Clean Water Act permit and when they would not,” Dan Keppen, executive director of the Family Farm Alliance, wrote in an email.
Other industries have also applauded the new rule.
The chief executive of the American Gas Association told the Guardian, “This new rule will provide much-needed clarity and regulatory certainty for companies that site and build infrastructure that delivers essential energy to America’s communities.”
Gibson argued that states, rather than the federal government, should regulate their own waters.
But environmentalists are worried because many states don’t currently have their own laws governing clean water. The Clean Water Act is the foundation which all other water-related regulations were built on, Southerland said. States have relied on federal oversight for decades.
“If we don’t have modern tools and substantial budgets to fund protecting our water quality, the future will be more polluted water.” — Zach Frankel, executive director of the Utah Rivers Council
Without that federal oversight over the majority of streams and wetlands, Western states will have to figure out water protection policies on their own.
But whether or not states can actually pick up the regulatory burden varies greatly across the West. Arizona has put in place almost no protections of its own, and New Mexico is in a similar situation.
“The federal government remains committed to working with all states, localities, and tribes to enhance their capacity to regulate, protect, and restore their waters,” an EPA spokesperson wrote in an email when asked to comment on the regulatory shift.
Some states have laws prohibiting them from taking action not required by the federal government, Southerland said, while others simply don’t have programs to issue permits and have been fully dependent on the federal government.
Do states want to enact stricter policies? And even if they want to, will they have the resources?
In Utah, environmentalists believe state action is critical.
“If we don’t have modern tools and substantial budgets to fund protecting our water quality, the future will be more polluted water and more sick people and animals and wildlife,” said Frankel, of the Utah Water Council.
If the Trump administration won’t provide the support, then, Frankel said, Utah needs to step forward.