Trump's Narrowing Of Clean Water Act May Spell Wetlands Doom

PALO ALTO, CA -- With the federal government significantly limiting regulation of wetlands and other waterways, alarm bells have sounded for environmentalists including those with an academic bent from Stanford University.

U.S. legislators passed the Clean Water Act 1972 to protect the country’s “navigable waters.” U.S. President Donald Trump recently proposed excluding protection of large amounts of wetlands and thousands of miles of waterways. Proponents of the change say it will bring clarity to questions surrounding permits for construction and agriculture around wetlands and streams. Critics argue the rollback will make it harder to oversee resources that are critical to ecosystem health, storm protection and other valuable natural services.

On Jan. 10, the U.S. Environmental Protection Agency and the U.S. Army will hold a public webcast to explain key elements of the proposal. Registration for the webcast is limited to 2,000 attendees.

As background, Leon Szeptycki, executive director of Stanford’s Water in the West program, has reviewed the complex legal history of the Clean Water Act’s definition of navigable waters and shared the data with the Stanford News Service.

The Supreme Court has issued three separate opinions on the meaning of the term, most recently in 2006. In that case, Justice Antonin Scalia wrote an opinion joined by three justices that argued for a narrow definition that included permanent water bodies and adjacent wetlands. Justice Anthony Kennedy joined those four justices in voting for a new definition, but wrote a separate opinion that argued for a definition that would be based on a “significant nexus” with navigable waters.

The Clean Water Act requires a permit to deposit “fill material” into waters of the United States. A wide variety of human activities often needs permits to fill streams and wetlands, including real estate development, transportation infrastructure, oil and gas pipelines and some agriculture. How many waters are actually protected affects the regulatory burden on a large number of landowners and businesses.

The definition proposed by the Trump administration is much narrower than those that have been used by the EPA and the Army Corps of Engineers. The new definition would cover only permanent bodies of water, some streams that predictably flow during the wet season and wetlands directly adjacent to permanent bodies of water.

Most or even all isolated wetlands and intermittent streams are important habitat for migratory birds, fish, amphibians and other species. Virtually all wetlands and streams are hydrologically connected to other water bodies in some way. The U.S. Fish and Wildlife Service estimates that between the 1780s and the 1980s, society destroyed over 50 percent of the wetlands in the lower 48 states. The current rate of loss in a year is estimated to be about 80,000 acres – an area about 95 times the size of New York’s Central Park. A narrower definition of waters of the United States has the potential to accelerate that rate of loss.

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