White House Finalizes \u201cWaters of The U.S.\u201d\u00a0 rule, removing protections for wetland and streams<\/strong><\/a> Congress<\/strong><\/a> Executive Branch<\/strong><\/a> Courts<\/strong><\/a> States<\/strong><\/a> International<\/strong><\/a> Scientific Community<\/strong><\/a> Opportunities to Get Involved<\/strong><\/a> ESA In the News<\/strong><\/a> <\/a> The final rule, named the \u201cNavigable Waters Protection Rule<\/a>,\u201d is largely similar to the proposed rule that the EPA released last year. The rule removes protections for ephemeral streams, which it defines as streams that are often dry. These streams account for more than 18% of waterways in the U.S and are more commonly found in the arid parts of the country. The new regulation will also remove protections for wetlands that do not have surface connections to intermittent or perennial streams. More than half of the country\u2019s wetlands \u2013 51% \u2013 fall into this category.<\/p>\n Shortly after the announcement, the EPA\u2019s Science Advisory Board approved a\u00a0letter<\/a>\u00a0denouncing the new WOTUS definition, writing that the rule\u00a0\u201cdecreases protection for our nation\u2019s waters and does not provide a scientific basis in support of its consistency with the objective of restoring and maintaining \u2018the chemical, physical and biological integrity\u2019 of these waters.\u201d<\/p>\n The watchdog group Public Employees for Environmental Responsibility filed a complaint with the EPA Inspector General and the agency\u2019s scientific integrity officer on behalf of current and former EPA employees. The complaint alleges that top political appointees violated agency policies when it prohibited career employees from submitting formal comments on the rule and instructed employees to respond to comment from \u201ca policy or legal stance,\u201d instead of from a scientific viewpoint.<\/p>\n ESA and the Consortium of Aquatic Science Societies<\/a>\u00a0have actively supported the 2015 Clean Water Rule rule and opposed the administration\u2019s rollback of the rule, citing the 2015 rule\u2019s strong basis in the peer-reviewed science. In 2017, ESA joined the Society of Wetland Scientists, American Fisheries Society, American Institute of Biological Sciences, Phycological Society of America, Society for Ecological Restoration and Society for Freshwater Science to endorse a scientists\u2019\u00a0Amici Curiae<\/em>\u00a0Brief in support of the 2015 clean water rule.<\/p>\n Trump erodes water protections: 6 things to know\u00a0\u00a0<\/strong>by Annie Snider, PoliticoPro, 1\/23\/2020<\/p>\n The Trump administration Thursday signed its long-promised regulation to remove millions of miles of streams and roughly half the country\u2019s wetlands from federal protection, the largest rollback of the Clean Water Act since the modern law was passed in 1972.<\/p>\n The move delivers a major win for the agriculture, home-building, mining, and oil and gas industries, which have for decades sought to shrink the scope of the water law that requires them to obtain permits to discharge pollution into waterways or fill in wetlands, and imposes fines for oil spills into protected waterways.<\/p>\n Those industries had fiercely fought an Obama-era regulation that cemented broad protections for headwater streams and certain wetlands. President Donald Trump, whose golf courses and other businesses had fought with regulators over Clean Water Act permits, has lambasted that rule as \u201cdisastrous,\u201d and his administration\u00a0repealed it last year<\/a>.<\/p>\n EPA Administrator Andrew Wheeler said the new rule \u201cstrikes the proper balance between Washington and the states in managing land and water resources while protecting our nation\u2019s navigable waters, and it does so within the authority Congress provided.\u201d<\/p>\n The new regulation, called\u00a0The Navigable Waters Protection Rule<\/a>, replaces the previous definition of protected waterways, which has been on the books for more than 30 years, with a vastly narrower one. Business groups and conservative lawmakers quickly praised the new version from the EPA.<\/p>\n \u201cToday\u2019s announcement brings us a step closer to clean water regulations that are clear and consistent,\u201d Marty Durbin, head of U.S. Chamber of Commerce\u2019s Global Energy Institute, said in a statement. \u201cThe new rule distinguishes between waters that are regulated by the federal government and those that are regulated by the states, making it easier for businesses, states and local governments to understand their obligations.\u201d<\/p>\n Green groups warned the new rule would reverse decades of advances in cleaning up the nation\u2019s waters, and pledged to sue to block the new rule.<\/p>\n \u201cThis sickening gift to polluters will allow wetlands, streams and rivers across a vast stretch of America to be obliterated with pollution,\u201d said Brett Hartl, government affairs director at the Center for Biological Diversity. \u201cDestroying half of our nation\u2019s streams and wetlands will be one of Trump\u2019s ugliest legacies.\u201d<\/p>\n Here are six things to know about the new rule:<\/p>\n It goes beyond overturning Obama-era protections to erasing protections that have been in place for decades:\u00a0<\/strong>The Trump administration has made a point of rolling back environmental rules put in place by its predecessor, accusing the Obama administration of federal overreach. But the new regulation goes much beyond repealing the Obama-era rule, unwinding the previous rules that have been in place to protect headwater streams and wetlands since the 1970s and \u201980s.<\/p>\n \u201cPresident Trump\u2019s administration wants to make our waters burn again,\u201d Earthjustice attorney Janette Brimmer said in a statement, referring to the 1969 fire on the Cuyahoga River in Cleveland that served as a major impetus for passing the Clean Water Act. \u201cThis all-out assault on basic safeguards will send our country back to the days when corporate polluters could dump whatever sludge or slime they wished into the streams and wetlands that often connect to the water we drink.\u201d<\/p>\n It drew complaints from EPA\u2019s own advisers:<\/strong>\u00a0The Trump administration finalized the rule despite concerns raised by EPA\u2019s outside scientific advisers, who issued a\u00a0draft report in late December<\/a>\u00a0that said the proposed version of the rule was \u201cin conflict with established science \u2026 and the objectives of the Clean Water Act.\u201d The criticism was particularly notable given that the majority of the board members were handpicked by the Trump administration.<\/p>\n When the Obama administration issued its more expansive rule in 2015, it did so based on a\u00a0massive scientific report<\/a>\u00a0that documented the importance of small streams to the health of downstream rivers and bays. In overturning that rule and issuing a far narrower one that would remove federal protections for waterways that don\u2019t flow regularly and wetlands that don\u2019t have an immediate surface water connection to larger waterways, the Trump administration has argued it\u2019s a matter of policy rather than of science. \u201cThis isn\u2019t about what\u2019s an important water body. All water is important. This is about what waters Congress intended the agency to regulate,\u201d a senior EPA official said on a call with reporters Thursday.<\/p>\n Half the country\u2019s wetlands could lose protection:<\/strong>\u00a0Wetlands, the in-between zone separating water and land, serve a crucial role in soaking up flood waters, filtering pollution and providing habitat to fish and wildlife. Despite a goal by the Reagan administration to have \u201cno net loss\u201d of wetlands, the U.S. has drained or filled in the lion\u2019s share of its marshes and bogs, and is\u00a0continuing on a downward trend<\/a>.<\/p>\n The new rule lifts federal protections for roughly half of the country\u2019s wetlands, according to the agency\u2019s own\u00a0internal estimates<\/a>. Environmental groups say this would surely accelerate the trend of lost wetlands at a time when the changing climate makes their benefits all the more important.<\/p>\n Dry, western states will see the biggest impact<\/strong>: Waterways in arid regions of the country, particularly in the West, are likely to be among those most affected by the new rule, which removes federal protections for streams that flow only after rainfall.\u00a0According to EPA, as much as 94 percent of Arizona\u2019s waterways could lose Clean Water Act protection<\/a>\u00a0under the regulation, as well as 89 percent of Nevada\u2019s.<\/p>\n The Trump administration argues that just because a waterway isn\u2019t federally regulated doesn\u2019t mean it\u2019s not protected, since states can still set more expansive protections. \u201cMany states already have a robust network of regulations that protect their state\u2019s waterways,\u201d Wheeler told reporters. But many states, including Arizona, have\u00a0laws on the books that prevent them from regulating more stringently<\/a>\u00a0than the federal government, and\u00a0states have been cutting the budgets for their environmental agencies<\/a>.<\/p>\n Apr\u00e8s-WOTUS, the deluge of lawsuits:\u00a0<\/strong>The new rule will set off the latest fight in a decades-long legal brawl over the scope of the Clean Water Act, which intensified following a muddled Supreme Court decision in 2006. With environmental groups already vowing to sue, the new Trump rule will likely become quickly entangled in litigation, much as its Obama-era predecessor was.<\/p>\n The water law is aimed at cleaning up \u201cnavigable waters\u201d like the Mississippi River and the Chesapeake Bay, but it is widely recognized that those can\u2019t be protected without also restricting pollution into the streams and creeks that flow into them, as well as the wetlands that buffer them from runoff. But how far upstream the law\u2019s protections reach has been a source of heated controversy.<\/p>\n In 2006, the Supreme Court issued a splintered decision in a case involving a patch of Michigan wetlands slated for development. The court\u2019s four conservative justices, led by the late Justice Antonin Scalia, backed a narrow approach to federal jurisdiction, while the court\u2019s four liberal justices endorsed broad federal authority. Justice Anthony Kennedy, who retired from the bench in 2018, joined the conservatives but issued his own, stand-alone opinion that set a more inclusive standard that gave federal protection to any streams and wetlands that had a \u201csignificant nexus\u201d to navigable waters.<\/p>\n Federal appeals courts have found Kennedy\u2019s opinion to be the guiding one, but barely a month after taking office, Trump issued an executive order directing EPA and the Army Corps of Engineers, which issues certain Clean Water Act permits, to hew to Scalia\u2019s opinion in drafting a new definition of which waterways should be protected.<\/p>\n Expect confusion on the ground:\u00a0<\/strong>Legal experts say the Trump rule is likely to be placed on hold by federal courts in at least some states, if not nationwide, as the litigation works its way through the courts. In the meantime, developers and other industries will have to decide how much of a risk they\u2019re willing to take.<\/p>\n While the Trump administration rule will technically allow polluters to impact many streams and wetlands without permits, Vermont Law School professor Patrick Parenteau said it\u2019ll be a legal gamble for them to do so, given the legal uncertainty and the Clean Water Act\u2019s hefty financial penalties for damaging protected waterways without a permit. Companies will have to ask themselves: \u201cHow much money is at stake and what happens if you guess wrong?\u201d he said.<\/p>\n Kelsey Tamborrino contributed to this report.<\/em><\/p>\n See also:\u00a0California will be hit hard as Trump administration weakens clean water protections \u2013 Los Angeles Times<\/a><\/p>\n <\/a> House Congressional Western Caucus:Members formally introduced and\u00a0announced<\/a>\u00a0a 17-bill package of legislative reforms to the Endangered Species Act (ESA).<\/strong>\u00a0The package includes a bill requiring federal agencies to make scientific data used in endangered species listing decisions publicly available and bills codifying changes to the ESA regulations finalized by the Trump administration in August 2019. The Congressional Western Caucus released a draft legislative package, comprised of largely identical bills, in fall 2019 and introduced another similar group of bills during the 115th<\/sup>Congress in summer 2018.<\/p>\n House Natural Resources Committee Chairman Raul Grijalva (D-AZ) said that it is unlikely that the Committee will hold hearings for these bills and noted that Committee Democrats are planning legislation to counter \u2018attacks\u2019 on the ESA from congressional Republicans and the administration. On Jan. 29, the full Committee will\u00a0consider<\/a>\u00a0Grijalva\u2019s Protect America\u2019s Wildlife and Fish In Need of Conservation Act (H.R. 4348<\/a>) which would reverse the Trump administration\u2019s 2019 changes to the ESA regulations.<\/p>\n House Science Committee:<\/strong>\u00a0Space and Aeronautics Subcommittee Chairwoman Kendra Horn (D-OK)\u00a0introduced<\/a>\u00a0legislation reauthorizing NASA\u2019s activities (H.R. 5666<\/a>). The Senate Commerce, Science and Transportation approved NASA authorization legislation (S. 2800<\/a>) in November 2019.<\/p>\n <\/a> Interior Department:\u00a0Secretary David Bernhardt\u00a0signed<\/a>\u00a0a record of decision, allowing TC Energy to construct the KeystoneXL pipeline on 44 miles of public lands in Montana.<\/strong>\u00a0The project\u2019s overall fate is still unclear due to on-going legal challenges. In December 2019, a federal judge determined that the Rosebud Sioux and Fort Belknap Indian tribes made \u201ccredible claims\u201d that the pipeline\u2019s construction would violate their treaty rights.<\/p>\n BLM:\u00a0The agency\u00a0announced<\/a>\u00a0that it is starting the process to change its grazing regulations,<\/strong>\u00a0with the stated goals of addressing the Government Accountability Office\u2019s recommendations addressing unauthorized grazing on public lands, improving permitting efficiency and modernizing regulations. The Bureau of Land Management\u2019s most recent attempt to modify its grazing regulations was struck down by the courts in 2006. The BLM controls 18,000 livestock grazing permits and leases, which allow grazing on 155 million acres of public lands across the western U.S. The agency is\u00a0accepting scoping comments<\/a>\u00a0through Feb. 28, 2020, and holding four public meetings about the project throughout February in Montana, Nevada, New Mexico and Wyoming.<\/p>\n EPA:<\/strong>\u00a0The agency\u2019s Science Advisory Board (SAB)\u00a0declined<\/a>\u00a0to approve a draft report on the proposed \u201cTransparency in Science\u201d rule during a series of teleconference meetings earlier this month, with several members objecting to parts of the draft. The\u00a0draft document<\/a>\u00a0was critical of the proposed rule, writing that \u201csome additional requirements of the Proposed Rule may not add transparency, and\u00a0even may make some kinds of research more difficult.\u201d\u00a0The SAB instead agreed to revise the report and revisit it at a later date.<\/p>\n NOAA:<\/strong> Scientists in NOAA\u2019s Earth System Research Laboratory received<\/a> permission\u00a0and funding to explore two geoengineering or \u2018climate intervention\u2019 techniques to cool the earth in response to climate change. One approach would involve injecting sulfur dioxide or another, similar aerosol into the stratosphere to block some sunlight. In the other approach, specialized ships would create low-lying clouds to shade the oceans. Research on both techniques are recommended in an upcoming National Academies Report, \u201cClimate Intervention Strategies that Reflect Sunlight to Cool Earth<\/a>.\u201d<\/p>\n <\/a> Golden Cheeked Warbler:<\/strong>\u00a0Judges on the Court of Appeals for the 5th<\/sup>Circuit\u00a0ruled<\/a>\u00a0that the U.S. Fish and Wildlife Service (USFWS) acted in an \u201carbitrary and capricious\u201d manner when it rejected a petition from the Texas General Land Office and conservative groups to remove the golden-cheeked warbler from the list of endangered and threatened species in 2015.<\/strong>\u00a0USFWS now must reconsider the petition. Golden-cheeked warblers nest in exclusively in central Texas mixed Ashe-juniper and oak woodlands and winter in Mexico and Central America.<\/p>\n California:<\/strong>\u00a0Attorney General Xavier Beccera (D)\u00a0sued<\/a>\u00a0the Bureau of Land Management, claiming that the agency failed to fully analyze the impacts of reopening over one million acres of land in the state to fracking in an environmental impact statement.<\/p>\n Clean Water Act:\u00a0The Attorneys General of Montana and Wyoming\u00a0asked<\/a><\/strong> the Supreme Court to overturn the state of Washington\u2019s determination that a proposed coal export facility in the state would harm water quality in the state.<\/strong>\u00a0Section 401 of the Clean Water Act allows state governments to deny water quality permits. The facility would export coal from Powder River Basin to Asia. The Trump administration has proposed modifying Section 401 Clean Water Act regulations to make it more difficult for coastal states to block fossil fuel exports, but it has not finalized those regulations.<\/p>\n <\/a> <\/a> Meanwhile,\u00a0five Native American tribes from Louisiana and Alaska\u00a0filed<\/a>\u00a0a complaint with the U.N., claiming that the U.S. federal government has failed to protect tribes from being forcibly displaced.<\/strong>\u00a0All of the tribes live in areas experiencing rapid land loss as a result of climate change.<\/p>\n WEF:<\/strong>\u00a0Environmental issues took top billing at the World Economic Forum (WEF) in Davos, Switzerland.\u00a0Before the event, the organization named failure of climate change mitigation and adaption and biodiversity loss as the top long terms risks over the next decade in its annual\u00a0Global Risk Report<\/a>.<\/strong>\u00a0At the event, European Commission President Ursula von der Leyen touted the organization\u2019s one trillion euro \u201cGreen Deal<\/a>\u201d\u00a0to plan to reach net-zero emissions by 2050. The WEF\u2019s International Business Council\u00a0unveiled<\/a> a new accounting framework for corporations to report their progress in meeting the U.N.\u2019s sustainable development goals.<\/p>\n <\/a> Science:<\/em><\/strong>\u00a0An\u00a0editorial<\/a>\u00a0by H. Holden Thorp, the editor-in-chief of\u00a0Science<\/em>, urges the scientific community to \u201cstep out of its labs and support evidence-based decision-making in a much more public way,\u201d citing the EPA\u2019s \u2018transparency in science\u2019 rule, which would limit the use of relevant scientific evidence in policymaking.<\/p>\n NSF:<\/strong>\u00a0The National Science Board released its biennial\u00a0State of U.S. Science and Engineering Indicators<\/a>\u00a0for 2020. The report finds that \u201cincreasingly, the United States is seen globally as an important leader rather than the uncontested lead\u201d in science and engineering. Meanwhile, the share of research and development funded by the U.S. federal government has declined since 2000, with the business sector funding and performing the majority of R&D in the U.S. The number of women and underrepresented minorities in the scientific workforce has increased, but these group still remain underrepresented relative to their numbers in the overall workforce and the population as a whole.<\/p>\n Over the past several months, the National Science Board released a series of\u00a0nine thematic reports<\/a>\u00a0covering topics from elementary and secondary science and mathematics education to trends in publications outputs.<\/p>\n Wellcome Trust:<\/strong>\u00a0The UK-based science funder released the\u00a0results<\/a>\u00a0of a survey of 4,000 researchers globally. The results of the survey include that while the vast majority of respondents are proud to work in the research community, only twenty-nine percent felt secure about pursuing a research career. Forty-three percent of respondents said that they have experienced bullying or harassment.<\/p>\n <\/a> Opportunities for Public Comment and Nominations:<\/strong><\/p>\n
\nSix things to know about the new regulation.<\/p>\n
\nHouse Natural Resources Committee advances Migratory Bird Protection Act.<\/p>\n
\nEPA\u2019s Science Advisory Board reviews \u201cTransparency in Science\u201d rule.<\/p>\n
\nNinth Circuit Court of Appeals dismisses youth climate case.<\/p>\n
\nFlorida Governor Ron DeSantis (R) announces plan to purchase 20,000 acres in the Everglades.<\/p>\n
\nU.N. human rights body affirms rights of climate change refuges.<\/p>\n
\nNational Science Board releases 2020 Science and Engineering Indicators report.<\/p>\n
\nFederal Register opportunities.<\/p>\n
\nView an up-to-date list of ESA\u2019s media coverage.<\/p>\nWhite House Finalizes \u201cWaters of the U.S.\u201d rule, removing protections for wetlands and streams<\/strong><\/h2>\n
\nThe Environmental Protection Agency (EPA) released a final definition of the \u201cWaters of the U.S.\u201d(WOTUS), replacing the Obama administration\u2019s 2015 Clean Water Rule.<\/p>\nCongress<\/strong><\/h2>\n
\nHouse Natural Resources Committee:\u00a0The full committee voted to advance Rep. Alan Lowenthal\u2019s Migratory Bird Protection Act (H.R. 5552<\/a>).<\/strong>\u00a0The bill would require the U.S. Fish and Wildlife Service to create a permitting program for the \u2018incidental take,\u2019 or accidental killing of migratory birds during commercial activities. This legislation is in response to a 2017 legal memo from the Department of the Interior Solicitor General that concluded that companies are not liable for the incidental take of birds. Before this memo, previous administrations fined companies for incidental take \u2013 for example, BP paid a $100 million fine under the Migratory Bird Treaty Act after the Deepwater Horizon spill.<\/p>\nExecutive Branch<\/strong><\/h2>\n
\nWhite House:\u00a0The Office of Science and Technology Policy issued a\u00a0request for comments<\/a>\u00a0from the scientific community on a \u201cdraft set of desirable characteristics of data repositories used to locate, manage, share, and use data resulting from federally funded research.\u201d<\/strong>\u00a0The draft set of characteristics includes long term sustainability, free and easy access and quality assurance. Comments should be submitted by March 3, 2020.<\/p>\nCourts<\/strong><\/h2>\n
\nClimate:\u00a0A panel of judges on the ninth circuit court of appeals\u00a0dismissed<\/a> the \u201ckid\u2019s climate case,\u201d also known as Juliana v. United States<\/em>.<\/strong>\u00a0In this case, 21 young Americans, backed by Our Children\u2019s Trust, sued the U.S. federal government in 2015 for insufficiently addressing climate change and violating their \u201cfundamental constitutional rights to freedom from deprivation of life, liberty and property.\u201d The panel of judges acknowledged the \u201cincreasingly rapid\u201d pace of climate change, but it ruled that the youth do not have legal standing to sue. Our Children\u2019s Trust lawyers now plan to appeal the case to U.S. Court of Appeals for the 9th Circuit. The organization is also actively pursuing several similar cases in state courts across the country. Canadian youth filed a comparable lawsuit in British Columbia in October 2019, arguing that their government\u2019s inaction over climate change infringes on their rights guaranteed in the Canadian Charter of Rights and Freedoms.<\/p>\nStates<\/strong><\/h2>\n
\nFlorida:\u00a0Governor Ron DeSantis (R)\u00a0announced<\/a>\u00a0that the state of Florida reached an agreement to buy 20,000 acres of land in the Everglades<\/strong>, protecting the land from potential oil drilling. A statement from the governor\u2019s offices notes that the area provides habitat for over 60 endangered and threatened species.<\/p>\nInternational<\/strong><\/h2>\n
\nU.N.:<\/strong>\u00a0The international body\u2019s Human Rights Committee\u00a0determined<\/a>\u00a0that individuals have a right to seek asylum if their home countries are threatened by climate change<\/strong>, similar to the rights guaranteed to those fleeing war or persecution. Ioane Teitiota, a native of Kiribati, brought the case to the U.N. after New Zealand rejected his application for asylum. In Teitotota\u2019s specific case, the body ruled that New Zealand was not obligated to grant asylum because his home island will not become uninhabitable in the imminent future.<\/p>\nScientific Community<\/strong><\/h2>\n
\nFellowships:<\/strong>\u00a0The North Carolina Sea Grant is accepting applications for the North Carolina STEM policy fellows program. Fellows must be recent graduates of a master\u2019s or doctoral program in STEM or a related discipline from a North Carolina institute of higher education. They will be placed in state government offices for a one year term. For more information, see the North Carolina\u00a0Sea Grant website<\/a>.<\/p>\nWhat We\u2019re Reading<\/strong><\/h2>\n
\n
Opportunities to get involved<\/strong><\/h2>\n
\nPublic Meetings, many of which are live-streamed:\u00a0<\/strong><\/p>\n\n
\n