Ag Today March 1, 2017

Trump orders review of Obama rule protecting small streams

Posted Feb 28, 2017 at 6:24 PMUpdated Feb 28, 2017 at 6:24 PM

By Staff and wire reports

WASHINGTON — President Donald Trump has signed an executive order mandating a review of an Obama-era rule aimed at protecting small streams and wetlands from development and pollution, fulfilling a campaign promise while earning the ire of environmental groups.

The order, signed at the White House on Tuesday, instructs the Environmental Protection Agency and Army Corps of Engineers to review a rule that redefined “waters of the United States” protected under the Clean Water Act to include smaller creeks and wetlands.

The rule was strongly opposed by farmers in San Joaquin County and across the nation. They argued that the rule would hinder work on their land, including areas that may be far from any substantial stream or river.

Trump’s order asks the heads of the agencies to publish a proposed rule rescinding or revising the waters rule for notice and comment — the first step in what is likely to be a yearslong administrative review process that many expect to end up at the Supreme Court.

At a White House signing ceremony, the president called the rule, which has never been implemented because of a series of lawsuits, “one of the worst examples of federal regulation” that he said “has truly run amok.”

“It’s been a disaster,” he went on, claiming that the EPA had decided it could regulate “nearly every puddle or every ditch on a farmer’s land or any place else that they decide.”

Clements grape grower Brad Goehring became one of the leading critics of the Clean Water Act after the U.S. Army Corps of Engineers issued him a cease and desist order more than a decade ago for filling wetlands. He says it was a routine disking operation on the family vineyard.

Goehring, who ran unsuccessfully for Congress in 2010, worked with the Trump transition team after the election and said he knew this issue would be a “top priority” for the new president.

“I’m excited,” Goehring said Tuesday. “I spent 12 years working on this thing. And we’ve never had more progress than we’ve got on it right now. I’m very optimistic about the future.”

Less enthusiastic was John Buckley, head of the Central Sierra Environmental Resource Center, which works to protect watersheds that ultimately drain into the Central Valley. In an email Tuesday, Buckley said the president was trying to strip protections for streams in order to please the mining and farming industries, and warned that this could be the first in a series of “attacks” on other environmental regulations.

“In the long run, shrugging off pollution on small streams doesn’t make the problem go away,” Buckley said. “It just leaves it to someone downstream to have to deal with it.”

Trump had railed against the water rule during his campaign, slamming it as an example of federal overreach. He has promised to dramatically scale back regulations that he says are holding back businesses, and has signed several orders aimed at that goal.

Despite the outcry over the rule, it has never taken effect because of lawsuits filed by Republican attorneys general and large agriculture companies. Environmental groups such as the Sierra Club have said they will sue to fight any attempt by the Trump administration to roll back the rule.

Thaddeus Lightfoot, a partner at the international law firm Dorsey & Whitney who has been practicing environmental law for almost 30 years, likened the order to a “paper tweet” that on a practical level will have no immediate impact.

“The only way to unwind it or roll it back or rescind it or modify it,” he said, is to go through the lengthy federal rulemaking process laid out in the federal Administrative Procedure Act. He said the process will likely takes months or years, and will likely include further legal action. He expects the Supreme Court to weigh in on the issue during the current session.

Trump was welcomed to the signing ceremony by applause from a group of farmers, home builders, county commissioners and lawmakers he’d invited to the White House for the occasion. He was also joined by newly-confirmed EPA chief, Scott Pruitt.

Pruitt, the former Attorney General of Oklahoma, joined with more than two dozen other states in suing EPA over the water rule. The case is still pending and Pruitt declined to answer questions about whether he would recuse himself during his confirmation hearing, despite protests from Democrats.