Saturday, March 18, 2017

15.3 - Not Good News: TheRump goes after clean water rules

Not Good News: TheRump goes after clean water rules

But even "sorta" Good News is better than Not Good News, and we have some of that, too.

Specifically, we have the intent of TheRump to turn back the clock on clean water by undoing the so-called Clean Water Rule.

The Clean Water Act of 1972 protects the "waters of the US" - major water bodies like large streams, rivers, bays and other coastal waters, along with streams and wetlands that flow into them - from being destroyed or polluted, or at least polluted without federal oversight and control.

The question always has been just how extensive is that reach, that is, just how far does the definition of "waters of the US" extend?

The issue came to a head in 2006 in the case Rapanos v. United States, involving a developer who wanted to fill in wetlands to build a shopping center. It resulted in a messy 4-1-4 split at the Supreme Court, with four right-wing justices taking a very narrow view of what the law covered, four others taking a more expansive view, and Anthony Kennedy trying to stake out a middle ground. In the absence of a majority, the controlling view became Kennedy's, who said that waters with a "significant nexus" to those clearly covered by the Act were themselves covered.

Which leaves another problem: What constitutes a "significant nexus?"

The Obama administration tried to answer that question with a rule-making effort that took over four years to get from a draft in 2011 to a final form in 2015. Relying on scientific research, the final Clean Water Rule said the law's protection extended to what are called "intermittent" waters, those that flow only certain times of the year, such as during snow melts, and "ephemeral" waters, those that flow in response to a weather event such as a rainstorm, provided they have other features of streams, such as banks and a bed.

The support for this position lies in the fact that according to the EPA, upwards of two-thirds of US stream miles are intermittent or ephemeral and that about 117 million Americans draw all or some of their water from public drinking water systems that depend at least partly on such sources and that such waters, along with the headwaters of streams, are hydrologically connected, that is, they do have a "significant nexus," with those larger streams and rivers clearly covered by the law.

The Clean Water Rule has never gone into effect because it was blocked in federal court while a suit against it proceeds, meaning those waters remain without protection.

Which is bad enough, but it gets worse.

On February 28, TheRump issued an executive order that not only indicated that the administration will no longer defend the Clean Water Rule in court but ordered the EPA and the Army Corps of Engineers, the two agencies involved in interpreting and enforcing the Clean Water Act, to review and revise the rules.

And not just in order to, as was expected, roll back the Clean Water Rule, but to adopt the standard used by the right-wing justices in the Rapanos case, one not only weaker than the standard the Obama administration proposed but even weaker than the one the Bush administration adopted in the wake of Rapanos.

That is a standard which not only would exempt intermittent and ephemeral streams from protection, but would even strip protection from wetlands that lack a direct surface flow consistently connecting them to perennial streams or lakes - those that always have water - even though many wetlands have their connection to those streams and lakes through underground flow or via aquifers. It would also deny protection to the headwaters that are the sources of those perennial streams. All, apparently, under the insane notion that water does not flow downhill and so you can pollute or damage upstream without affecting downstream.

The silver lining in this dark cloud is that the Clean Water Rule isn't going away any time soon. TheRump's order allows the EPA to begin the lengthy rulemaking process - but the whole process is something which the New York Times suggests could take more time than he has left in his first term.

Even so, this is clearly an indication of the attitude the White House cabal takes to issues of environmental protection and likely presages future assaults on environmental regulations.

And that, most certainly, is not good news.

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