As President Donald Trump signed one of his first executive orders, he was surrounded by smiling, clapping homebuilders, farmers and other supporters eager to see the new president rein in a 45-year-old law protecting the nation’s waterways.
The Environmental Protection Agency has “truly run amok” by saving “nearly every puddle or every ditch on a farmer’s land,” Trump told the gathering. Calling it a “massive power grab,” he added, “if you want to build a new home … you have to worry about getting hit with a huge fine if you fill in as much as a puddle – just a puddle – on your lot.”
But these so-called puddles and ditches, according to scientists across the country, are fundamental to the nation’s drinking water supplies and to wildlife, including many rare animals and plants.
In February, Trump ordered his EPA administrator, Scott Pruitt, to throw out a 2015 rule that protects seasonal streams and small isolated ponds, which would shrink the reach of the 1972 Clean Water Act by narrowing the definition of “waters of the United States.”
In its place, Trump asked for a new rule that, in effect, would eliminate protection for tens of thousands of wetlands from coast to coast. What’s at stake? Seasonal pools hidden in California grasslands and Maine forests, mountain streams in Arizona, freshwater marshes along the Gulf Coast, cypress swamps in Florida, glacial prairie potholes pockmarking the Midwest and more.
Based on the U.S. Fish and Wildlife Service’s National Wetlands Inventory, at least 20 million acres of vernal pools, potholes, salt flats, creeks and other isolated wetlands would be put at risk if the EPA follows Trump’s directions.
And as many as 60 percent of U.S. streams would lose protection, according to the agency’s own calculations. These headwaters and ephemeral streams and creeks contribute to the drinking water supplies of more than 117 million Americans.
The changes are on a fast track: Pruitt already initiated the process to overturn the existing rule and is drafting a new one, which he has promised to unveil by year’s end.
Powerful interest groups
For decades, developers, landowners, growers, energy companies, mines and other industries have tried to limit their obligations to preserve wetlands under the Clean Water Act.
Why are they important: Connecting water and land, they sustain a variety of animals, particularly during migration. As the planet warms, they will be even more valuable as stores of freshwater.
Opposition to the Obama administration rule comes from business groups that are heavyweights in lobbying federal lawmakers and agencies on an array of issues, led by the U.S. Chamber of Commerce, which spent $104 million on all lobbyists last year, according to the Center for Responsive Politics. The American Petroleum Institute spent $6 million in 2016, the National Association of Home Builders spent $4.4 million and the American Farm Bureau Federation, $3.8 million.
Granger MacDonald, whose companies have developed multi-family apartment projects in 25 Texas cities, and Georgia third-generation farmer Zippy Duvall attended Trump’s signing ceremony. MacDonald, chairman of the homebuilders association, commended Trump for taking the first step toward overturning a rule that “goes so far as to regulate manmade ditches and isolated ponds on private property.”
Duvall, a poultry, cattle and hay producer and president of the American Farm Bureau Federation, called the rule “reckless and unlawful.”
The golf industry also lobbied against the water rule, which suggests that Trump, who owns 12 golf courses in the United States, could benefit financially from killing it. Golf course owners worry that their ponds and drainage areas might be subject to provisions about pesticide runoff and filling of wetlands.
Trump didn’t mention effects on golf courses or his other property in his remarks, but he did say it’s a “very destructive and horrible rule” and he’s “been hearing about it for years.”
No projects have ever been affected by the 2015 rule. That’s because business groups – including the farm and homebuilder associations – joined 31 states and 91 members of Congress arguing in court that the EPA had overstepped its authority. They won a stay, so the rule has not been enforced as the legal wrangling continues.
Pruitt, as Oklahoma’s attorney general, led this multi-state lawsuit against the agency he now oversees. Under pressure, Pruitt has recused himself from the lawsuit. But he did not recuse himself from the rule revisions ordered by Trump. Pruitt’s former general counsel in Oklahoma, Sarah Greenwalt, is now a top EPA official involved in rewriting the rule. Her name also is on the lawsuit against the EPA, but she has not recused herself.
Paul Jones, a former EPA official who reviewed permits for filling wetlands in California, Nevada and Arizona for 27 years until he retired last year, said he was worried about the administration’s quick move to weaken the Clean Water Act.
“The minute we turn our backs,” Jones said, “the forces of industry, agriculture and real estate destroy the waters of the United States right under our noses.”
A rancher’s vernal pools
High above California’s Central Valley, winter rains and melting snow gush down the craggy face of the Sierra Nevada, turning the valley green. Rivulets trickle through creeks and pools, filling the often-dry San Joaquin River, which flows to the delta as a source of drinking and crop water before heading on to San Francisco Bay.
Vernal pools mark the Sierra foothills and valley floor, where land developers dream of subdivisions and growers of orchards.
Why are they important: Home to a variety of species, including rare salamanders, gray tree frogs and spotted turtles.
Driving south on little roads east of Highway 99, orchards turn to natural grassland. From atop China Hat Ridge, the Chance Ranch encompasses 8,000 acres. Rainstorms ending the record drought inundated clusters of vernal pools here.
The pools slow runoff, store water and filter sediment before spilling into narrow swales that run to unnamed creeks, connecting to the Merced River and eventually the San Joaquin. Salamanders, frogs and other creatures rush to complete their lifecycles before the water dries up. Growing in the green pools are colorful wildflowers.
Rancher Jeff Chance has a fondness and appreciation for these pools that bloom in spring, saying: “The cattle can find water. They don’t have to walk too far.” His family keeps the pools natural in exchange for added rangeland from The Nature Conservancy, an environmental group.
“Ranchers are the best caretakers. We don’t like to mess up anything,” he said. “We like the horse and the gooseneck trailer. We don’t like the tractor and the plow.”
Seasonal pools such as these are living examples of Trump’s “puddles and ditches.”
The revised waters definition that Trump advised Pruitt to adopt likely would eliminate protection for pools and ponds, as well as streams that don’t run most of the year or are not continuously connected by surface water to navigable waters, such as bays, rivers and the Great Lakes.
Scientists say this definition is not scientifically sound and would leave important natural resources unprotected from bulldozers and plows. It also would change which waters would be protected from pollution from sewage plants, industries and farms.
“This new definition clearly would not be based on science,” said Ralph W. Tiner, a former U.S. Fish and Wildlife Service biologist and author of two textbooks and 200 scientific papers on wetlands. “A change like this would put in jeopardy the quality of the nation’s water and the fate of the nation’s wildlife.”
The EPA’s website says wetlands are “biological supermarkets,” among the world’s most productive ecosystems, comparable to coral reefs and rainforests. More than half of the country’s wetlands have been lost since 1780, according to the Fish and Wildlife Service, and losses continue, with recent mapping showing about 110 million acres in the contiguous United States.
Linking land and water, wetlands are essential for cleansing and recharging groundwater in underground basins, controlling flooding and providing life support for waterfowl and other wildlife.
“Like diamonds, they can be small, but extremely valuable,” the Society of Wetland Scientists wrote in a letter to Trump in March.
The Scalia definition
Trump specifically asked Pruitt for a new definition of “waters of the United States” that mimics language used by the late Justice Antonin Scalia in a Supreme Court split decision a decade ago. The EPA says that definition covers only “relatively permanent waters, and wetlands with a continuous surface connection to relatively permanent waters.”
Examples of what’s at risk are found throughout the country: Thousands of inland basins from New Jersey to Florida fill with rain and then evaporate. Prairie pothole wetlands in the upper Midwest mostly are connected by water underground. In the Southwest, 80 percent of streams flow only after rainfall, according to the U.S. Geological Survey.
Why they are important: They catch and store runoff, preventing flooding and recharging groundwater. The U.S./Canada pothole region produces half of North America’s waterfowl.
“In California alone, we have lost thousands of acres in the last two decades,” said Jones, the former EPA biologist, who worked on national science teams determining which wetlands should come under the Clean Water Act. “To adopt the Scalia definition would only further weaken the ability of agencies to regulate wetlands and streams.”
Deciding what qualifies should be a task for scientists, Tiner said, because understanding how various wetlands contribute to ecological and hydrological functions takes considerable expertise. For instance, headwaters linked to downstream waters only by seasonal flows and underground water would not meet the conditions of the Scalia definition.
“It makes little sense to try to maintain biological, chemical and hydrological integrity of our nation’s water and exclude the source of the streams,” Tiner said.
Also, potholes from North Dakota to Montana and Texas could be excluded because they are connected mainly by groundwater, not surface waters.
“Prairie potholes are the duck factories of the North American continent,” Tiner said.
During droughts, prairie potholes might be the only watery green places for wildlife, he added, including some species that are rare or endangered.
“Think of all the aquatic animals living in streams and adapted to the natural pulses of water,” Tiner said. “Let’s say you filled the intermittent streams or the headwater wetlands. If you didn’t have the high water flows, what would happen to the many species of fish that spawned on overflowed floodplains? They would vanish.”
Jeanne Christie, executive director of the Association of State Wetland Managers, said many state scientists are struggling with the proposed rule changes.
“The words used in the court decision are not terminology previously used by scientists,” Christie said. “So in order to have a scientific basis for identifying these streams, the EPA and the (Army) Corps (of Engineers) will have to do a crosswalk between science and these new words. For instance, what did Scalia mean by ‘relatively permanent waters?’ ”
‘Confusing and cumbersome’ rules
Under the Obama rule, property owners must seek federal permits if they want to dam, grade or fill vernal pools, potholes or other wetlands for construction or crops, and they must replace the lost wetlands elsewhere.
California Farm Bureau Federation attorney Kari Fisher calls the rule “confusing and cumbersome for farmers and ranchers.” For example, ditches are exempted under certain circumstances, “but the burden falls on the landowner, and it’s difficult to prove.”
Zippy Duvall of the American Farm Bureau Federation said last year that a Senate committee investigation found instances of farmers being told to stop plowing fields or planting trees and to preserve their own tire ruts as wetlands.
The Senate and congressional Western Caucuses, predominantly made up of Republicans, have said the regulation stymies economic growth.
“During the campaign, Donald Trump showed his familiarity with the complaints from the Republican wing that accuses over-reaching environmental protection of gobbling up private property,” said Reed Hopper, a senior attorney for the conservative Pacific Legal Foundation. “The rule is an abuse of regulatory power. It’s a prime focus of our regulatory rollback.”
Coastal plain basin
Why they are important: They often provide the only freshwater available to birds and other wildlife while reducing flooding.
Environmental groups are concerned about the rapid pace of the rollback: Trump’s executive order was issued Feb. 28. A week later, the EPA published its intent to rescind and replace the Obama rule. On April 19, Pruitt heard comments from local and state representatives. The rule to rescind was sent to the White House’s Office of Management and Budget on May 3, and the new one is expected to be proposed this fall.
“Donald Trump’s executive order had such high priority because it has the potential to broadly undermine Clean Water Act protections in one fell swoop,” said Jon Devine, an attorney for the Natural Resources Defense Council in Washington. “As a result, it is being pushed by numerous and varying sectors that discharge pollution and are regulated by the law.”
The current rule was years in the making, with more than 1.1 million comments over seven months and 400 meetings with interested parties, plus a peer-reviewed EPA scientific report that prompted 130,000 comments. The Natural Resources Defense Council, the Sierra Club and 24 other environmental groups sent a letter to Pruitt seeking the same effort from the Trump administration. Pruitt, however, told Congress to expect a final rule early next year.
“We have every expectation the matter will be fast tracked,” Devine said, “with a brief comment period, to get the Obama rule off the books.”