Elizabeth Kolbert / The New Yorker & Jane Kay / The Reveal – 2018-01-22 00:55:54
https://www.newyorker.com/magazine/2018/01/22/the-damage-done-by-trumps-department-of-the-interior
The Damage Done by Trump’s Department of the Interior
Under Ryan Zinke, the Secretary of the Interior,
it’s a sell-off from sea to shining sea
Elizabeth Kolbert / The New Yorker
(January 15, 2018) — On his first day as Secretary of the Interior, last March, Ryan Zinke rode through downtown Washington, DC, on a roan named Tonto. When the Secretary is working at the department’s main office, on C Street, a staff member climbs up to the roof of the building and hoists a special flag, which comes down when Zinke goes home for the day.
To provide entertainment for his employees, the Secretary had an arcade game called Big Buck Hunter installed in the cafeteria. The game comes with plastic rifles, which players aim at animated deer.
The point of the installation, Zinke has said, is to highlight sportsmen’s contribution to conservation. “Get excited for #hunting season!” he tweeted, along with a photo of himself standing next to the game, which looks like a slot machine sporting antlers.
Nowadays, it is, in a manner of speaking, always hunting season at the Department of the Interior. The department, which comprises agencies ranging from the National Park Service to the Bureau of Ocean Energy Management, oversees some five hundred million acres of federal land, and more than one and a half billion acres offshore.
Usually, there’s a tension between the department’s mandates — to protect the nation’s natural resources and to manage them for commercial use. Under Zinke, the only question, from the redwood forests to the Gulf Stream waters, is how fast these resources can be auctioned off.
One of Zinke’s first acts, after dismounting from Tonto, was to overturn a moratorium on new leases for coalmines on public land. He subsequently recommended slashing the size of several national monuments, including Bears Ears, in Utah, and Gold Butte, in Nevada, and lifting restrictions at others to allow more development.
(In December 2017, acting on these recommendations, President Donald Trump announced that he was cutting the area of the Bears Ears monument by more than three-quarters and shrinking the Grand Staircase-Escalante monument, also in Utah, by almost half.)
Zinke has also proposed gutting a plan, years in the making, to save the endangered sage grouse; instead of protecting ten million acres in the West that had been set aside for the bird’s preservation, he’d like to see them given over to mining. And he’s moved to scrap Obama-era regulations that would have set more stringent standards for fracking on federal property.
All these changes have been applauded by the oil and gas industries, and many have also been praised by congressional Republicans. (Before Zinke became Interior Secretary, he was a one-term congressman from Montana.) But, to some members of the GOP, Zinke’s recent decision to open up great swaths of both coasts to offshore oil and gas drilling represents a rig too far.
Last week, Zinke backtracked. Following a brief meeting with the governor of Florida, Rick Scott, at the Tallahassee airport, the Secretary said that he was removing that state’s coastal waters “from consideration for any new oil and gas platforms.” The move was manifestly political.
In the past, Scott has supported drilling for oil just about everywhere, including in the Everglades, but, with Trump’s encouragement, he is now expected to challenge Florida’s senior senator, Bill Nelson, a Democrat, in November.
“Local voices count” is how Zinke explained the Florida decision to reporters, a remark that was greeted with jeers from elected officials in other states, who noted that some “local voices” were more equal than others. “Virginia’s governor (and governor-elect) have made this same request, but we have not received the same commitment,” Senator Tim Kaine, Democrat of Virginia, tweeted. “Wonder why.”
Walter Shaub, the former head of the Office of Government Ethics, noted that the Florida coast happens to be home to Mar-a-Lago, Trump’s winter White House cum dues-collecting club. He suggested that the Secretary “look up ‘banana republic’ ” and then “go fly a Zinke flag to celebrate making us one.”
Two days after his trip to Tallahassee, Zinke proposed a complete reorganization of the Interior Department, which currently has some seventy thousand employees. (In September, he told attendees of an oil-industry meeting that thirty per cent of the employees were “not loyal to the flag,” by which he seemed to mean himself.)
“Now is the time to be transformative,” the Secretary said in a video message that showed him sitting next to a blazing fire. The plan would require congressional approval, but it seems to have been put together without consulting lawmakers.
“Neither Zinke nor his assistants have opened the specifics of their proposed reorganization to public or congressional input,” Representative Raúl M. Grijalva, an Arizona Democrat, wrote recently in an op-ed in the Durango Herald, which ran under the headline “RYAN ZINKE IS DESTROYING THE INTERIOR DEPARTMENT.”
Zinke is, in many ways, a typical Trump appointee. A lack of interest in the public interest is, these days, pretty much a precondition for running a federal agency. Consider Betsy DeVos, the Secretary of Education, or Scott Pruitt, the head of the Environmental Protection Agency, or Rick Perry, the Secretary of Energy.
Nearly all Trump’s Cabinet members have shown disdain for the regulatory processes they’re charged with supervising. And, when it comes to conflicts of interest, they seem, well, unconflicted.
In October, the Interior Department’s inspector general opened an investigation into Zinke’s travel expenses, which include twelve thousand dollars for a charter flight from Las Vegas to Kalispell, Montana, on a plane owned by executives of a Wyoming oil-and-gas company.
Still, Zinke manages to stand out for the damage he is doing. Essential to protecting wilderness is that there be places wild enough to merit protection. Once a sage-grouse habitat has been crisscrossed with roads, or a national monument riddled with mines, the rationale for preserving it is gone. Why try to save something that’s already ruined?
“They’re determined to lease and develop every acre they possibly can, which will minimize the potential for conserving these landscapes in the future,” Jim Lyons, who was a Deputy Assistant Secretary at the Interior Department during the Obama Administration, told the Washington Post. “They’re quite efficient, and they know exactly what they want to do.”
In the decades to come, one can hope that many of the Trump Administration’s mistakes — on tax policy, say, or trade — will be rectified. But the destruction of the country’s last unspoiled places is a loss that can never be reversed.
Protecting ‘Puddles and Ditches’
The Reveal
(January 16, 2018) — Since taking office, President Donald Trump has made no secret of his intentions to roll back aspects of the Clean Water Act. He’s criticized Environmental Protection Agency efforts to protect what he calls “every puddle and ditch,” and he’s instructed the agency’s administrator, Scott Pruitt, to throw out an Obama-era rule that protects seasonal streams and small, isolated ponds.
Back in June, reporter Jane Kay explained why experts say these wetlands are important. For one thing, they’re home to a variety of rare wildlife. They also contribute to the drinking water supplies of about 117 million Americans — about one-third of the country.
The changes are on a fast track nevertheless, with Pruitt hoping to rescind Obama’s rule by April — and replace it by May.
Hoping to head off the federal government’s efforts, states like California are moving swiftly to implement their own protections. The state’s water board recently prepared its own rules to protect wetlands and other waters.
“When you look at it from a historical perspective, California has lost the vast majority of the wetland resources,” said planner Paul Hann, who oversees the State Water Resources Control Board’s wetlands protection program. “We want to capture the rich diversity of wetlands across the state. These resources play a big role in improving our water quality and providing a valuable benefit in terms of flood protection, wildlife habitat and recreation.”
The rules are scheduled to be voted on this summer.
Trump’s ‘Puddle and Ditch’ Order Will Have a Destructive Ripple Effect
Jane Kay / The Reveal
(June 20, 2017) — 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 US 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 US 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.
EPHEMERAL STREAMS
What are they: These streams flow after rain or snowmelt and are a vital part of the nation’s river network. They can disappear for months. They connect to downstream rivers.
Where are they: Mostly in arid or semi-arid mountains and valleys in Arizona, Nevada, New Mexico and Utah.
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 US 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 attendedTrump’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.
VERNAL POOLS
What are they: Clusters of ponds surrounded by grasslands or forests that fluctuate between wet and dry, earning the name “vernal,” denoting spring.
Where are they: California grasslands, particularly in the Central Valley, and moist woodlands nationwide, including pockets of Maine, New Hampshire, Massachusetts and New Jersey.
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 US 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 US Geological Survey.
PRAIRIE POTHOLES
What they are: A retreating glacier 10,000 years ago left millions of depressions on prairies that are connected by groundwater. During wet years, water spills over to connect them on the surface.
Where they are: Millions of acres in Minnesota, North Dakota, South Dakota and Wyoming. Half have been lost, mostly to agriculture.
Why they are important: They catch and store runoff, preventing flooding and recharging groundwater. The US/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
What they are: Isolated ponds that form in depressions where groundwater flows to the surface and rainwater collects. Some merge with wet meadows, swamps and forests.
Where they are: From New York south to Florida and west to Texas, including thousands of coastal plain ponds; portions of Carolina bays from southeastern Virginia to Florida; and potholes along the Maryland/Delaware border.
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.”
California Is Preparing to Defend Its Waters from Trump Order
Jane Kay / The Reveal
(January 10, 2018) — In its first act to shield California from the Trump administration’s repeal of regulations, the state’s water board has prepared its own rules protecting wetlands and other waters.
The proposed new rules, scheduled for a vote by the board this summer, could insulate the state from President Donald Trump’s executive order to roll back the reach of the Clean Water Act. That rollback would strip federal protection from seasonal streambeds, isolated pools and other transitory wetlands, exposing them to damage, pollution or destruction from housing developments, energy companies and farms.
“When you look at it from a historical perspective, California has lost the vast majority of the wetland resources,” said planner Paul Hann, who oversees the State Water Resources Control Board’s wetlands protection program. “We want to capture the rich diversity of wetlands across the state. These resources play a big role in improving our water quality and providing a valuable benefit in terms of flood protection, wildlife habitat and recreation.”
Over the past two centuries, California has lost roughly 90 percent of its wetlands, leaving 2.9 million acres, according to the California Natural Resources Agency. These remaining wetlands support more species of plants and animals than any other habitat, including an estimated 41 percent of California’s rare and endangered species.
Stepping in to protect its wetlands “is a prime example of a state exerting its right to protect itself from federal rollbacks,” said attorney Rachel Zwillinger, a water policy adviser for Defenders of Wildlife. “California is showing the type of state leadership that our system of cooperative federalism envisions.”
What’s at Stake
Winter brings dormancy and frozen earth to much of the country. But on the border of Marin and Sonoma counties, about 40 miles north of San Francisco, hundreds of creeks and lakes are springing to life. Birds swoop in from the north, steelhead and salmon edge their way upstream, and newts and pond turtles emerge in waterways fed by rain.
“The end of the summer is such a terrible time when it’s dry and dusty and the earth is parched. When it starts to rain, it’s like heaven,” said Sally Gale, a fifth-generation rancher in Petaluma who is president of the Marin Resource Conservation District. “The earth smells so rich and fertile. In a couple of days, you see a sprinkling of green across the pasture. The network of rivulets and wetlands looks like veins on a leaf.”
“The land comes back to life. It’s magic,” Gale said.
These wetlands are an example of what’s at stake in the state’s effort to protect what could be left vulnerable by the Trump administration’s plan to roll back the federal rule and redefine wetlands.
In California, Nevada, Colorado, Utah, Arizona and New Mexico, the vast majority of streams flow only in response to rainfall, according to US Geological Survey data cited by the US Environmental Protection Agency.
“The West is different from the rest of the country,” said Dave Shuford, senior biologist at the Petaluma-based nonprofit Point Blue Conservation Science. “The ecosystems out here are very dynamic. Year to year, they change depending on rainfall.
“It’s boom or bust for species,” he added. “If birds, amphibians and reptiles don’t have these places to go, they’ll have a hard time breeding.”
In a drought year, the creeks hold no water. In a wet year, they catch the rain, and their vegetation filters out pollutants before they can move via creeks and rivers toward the ocean. The pools recharge groundwater, slow flooding, stop erosion and provide fresh water for flora and fauna.
“If you add up all of the small spots, it’s a big resource,” Shuford said. “You have a bunch of little places that support huge numbers of birds.”
Like a scene out of the Old West, Chileno Valley Road in Petaluma winds through coast live oaks and bay laurels before the landscape opens to once-straw-colored hills now turned bright green. Hidden in the hills, formerly dry washes and creeks surge with rainwater. Eventually, the flows make their way to Tomales Bay, one of the most pristine bays on the West Coast, and then on to the ocean.
Along the winding road, a handsome Victorian Italianate house built in the 1880s marks the Chileno Valley Ranch, where Gale and her husband, Mike, raise grass-fed beef cattle and lambs and grow apple trees on unirrigated pastureland dependent on rain.
Behind the house, Chileno Creek began to trickle after a handful of November rains. Blue herons and white egrets searched for food. As winter rain pelts the watershed, the creek rushes. In time, it can fill to 150 feet wide and overflow onto the pastures.
Steelhead will arrive, and later in the winter, red-legged frogs and pond turtles. Family and friends have counted more than 100 species of migratory songbirds, many of which stay to breed, as well as muskrats, raccoons, coyotes, foxes and bobcats.
Trump’s Order
For decades, many builders, growers, ranchers, energy and mining companies and other industries have lobbied federal lawmakers to limit their obligations to preserve wetlands under the Clean Water Act.
Shortly after taking office, Trump told a gathering of farmers and homebuilders that the EPA had “truly run amok” by saving “nearly every puddle or every ditch.” He told EPA Administrator Scott Pruitt to throw out the Obama administration rule that protects seasonal streams and small isolated ponds and shrink the reach of the law by narrowing the definition of “waters of the United States.”
Pruitt has made clear where he stands: As Oklahoma’s attorney general, Pruitt sued the EPA in 2015 to overturn the wetlands rule. As administrator, he appeared in an August video for the National Cattlemen’s Beef Association, urging ranchers to send him public comments supporting its repeal. The Government Accountability Office isinvestigating this as a possible violation of rules forbidding lobbying by government officials.
In June, Pruitt started the repeal, hoping to fast-track it. But it’s been slowed by regulatory obstacles. Under the latest schedule, he plans to rescind the rule by April and propose a new one by May.
Trump directed Pruitt to incorporate a definition, put forth by Supreme Court Justice Antonin Scalia in 2006, that defines protected bodies as relatively permanent and continuously connected by surface water to navigable bays, rivers or lakes.
If Pruitt incorporates that definition, it could endanger the drinking water supply of more than 117 million Americans. According to a 2009 EPA analysis, 58 percent of streams that supply public drinking water systems are intermittent or ephemeral. Based on the National Wetlands Inventory, the EPA assessed that at least 20 million acres of vernal pools, potholes, salt flats, creeks and other isolated wetlands would be put at risk.
If the rule “is rolled back, many of our waterways may lose critical protections,” California Attorney General Xavier Becerra, who has joined seven other states and Washington, D.C., in objecting to the repeal of the Obama rule, said in a statement. “The California Department of Justice refuses to stand idly by and let that happen.”
California Prepares To Be Rollback Ready
For more than a decade, the California water board has been working with scientists, holding public meetings and consulting with landowners and businesses to develop new dredge-and-fill regulations to enforce the state’s landmark Porter-Cologne Act, adopted in 1969. A key piece is providing a new wetland definition protective of the state’s intricate network of water bodies.
In mid-2016, before Trump was elected, the board staff unveiled its proposal, defining which characteristics qualify as a protected wetland and laying out provisions that are more protective to a wide array of water bodies than the current federal rule.
For the first time, all the regional boards would enforce the same regulations when landowners and others seek government permission to discharge into or disturb wetlands. If enacted, the state’s directive would be first to avoid deterioration, then minimize losses and, if loss is necessary, fully replace them.
“We’re trying to balance procedural efficiency with environmental protection,” said Hann, the board’s wetlands protection program head.
Under narrower federal rules, businesses might be able to plow over or drain a seasonal pool or tributary, while under the state rules, it would be considered a protected wetland that could not be disturbed without investigation and permits.
In urging Trump to revoke the Obama administration rule, the American Farm Bureau Federation, the National Association of Home Builders, energy companies and other business groups argued that states should control their own waters. Now that California is stepping in to take control, these same groups are arguing that the state’s proposed rules are duplicative and contradict federal rules.
“Why should we have dueling processes?” said Kari Fisher, a lawyer for the California Farm Bureau Federation. “That’s very expensive. You have situations where the state and federal governments can be at odds because they’re using different definitions and reaching different conclusions, for example, on mitigations. You have all of these conflicting issues that would arise.”
California already has led the way in challenging the Trump administration’s proposed border wall, cuts to health care funding and the plan to end the Deferred Action for Childhood Arrivals or “Dreamer” program for young immigrants living in the country illegally. But this would be its first official rule that would stop a Trump rollback from affecting California.
Richard Frank, a former state chief deputy attorney general who now directs the California Environmental Law and Policy Center at the UC Davis School of Law, predicts that some states will follow California’s lead in adopting their own wetlands rules, while others will be content with the federal rollback.
“This is the environmentally strongest water board I’ve been aware of in the 40 years I’ve been following California activities closely,” Frank said.
Jane Kay can be reached at JaneKayEnvironment@gmail.com. Follow her on Twitter: @JaneKayNature.
Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes.
