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Trump Proposes New Definition Of Protections Under Clean Water Act


Federal protections for many of the nation's waterways and wetlands may be going away. Yesterday, the Trump administration proposed a new definition for what waters fall under the Clean Water Act. This definition is significantly narrower than any before, and challenges to the proposed changes are sure to come, as NPR's Nathan Rott reports.

NATHAN ROTT, BYLINE: The question of what waters are protected under the Clean Water Act is about as old as the act itself. For decades since 1972, different administrations and different courts have brought their own interpretations to the Clean Water Act's language, creating a pretty muddy regulatory landscape in the doing. The Trump administration, like the Obama administration before, is aiming to clear that up. Here's Andrew Wheeler, the acting administrator for the Environmental Protection Agency.


ANDREW WHEELER: Property owners should be able to stand on their property and be able to tell whether or not they have water that is federal water without having to hire outside professionals.

ROTT: That may sound nice, says Sean Hecht, a law professor and environmental lawyer at the University of California Los Angeles. And it would certainly be ideal - but, he says...

SEAN HECHT: It's not clear that that's really what the Clean Water Act requires.

ROTT: What the Clean Water Act requires, Hecht says, is that our waterways are not getting polluted, no matter how complicated for a property owner that may be. This is one of the challenges the Trump administration's proposal could run into.

HECHT: The thing to keep in mind is that, for several administrations past, Republican and Democrat, the federal jurisdiction over waters were very, very broad.

ROTT: The Trump administration's proposal is not. It aims to promote economic growth and to cut down regulations that real estate developers and agriculture groups see as too burdensome. Documents obtained by E&E News under the Freedom of Information Act show that at least 18 percent of streams and half of wetlands nationwide would no longer get federal protection under the new rule. To justify that, the administration relies heavily on an opinion by the late Supreme Court Justice Antonin Scalia, who believed that the Clean Water Act should only protect waters and wetlands with a continuous surface connection. The problem is, Hecht says...

HECHT: Justice Scalia's interpretation was really - is really at odds with the way that scientists look at these questions.

ROTT: Because it doesn't include the fact that waterways often connect underground. Brett Hartl is with the Center for Biological Diversity, which also challenged the Obama water rule. But that one, he notes, at least had hundreds of pages of science to support it.

BRETT HARTL: This administration doesn't even have a scientific support document at all. They literally have just a legal opinion and that is it.

ROTT: Ann Navaro is a partner at the law firm Bracewell and has worked with the Army Corps of Engineers and at the Interior and Justice Departments. She says she expects her to be a number of challenges to the proposal, but ultimately, that might not be a bad thing for the administration.

ANN NAVARO: Certainly, I see a strong possibility that this would make its way to the Supreme Court. And I would say that there's a good chance that the approach would be received favorably in court.

ROTT: Meaning the Supreme Court, in its current configuration, may likely support the Trump administration's more restrictive view of what waters are protected under the Clean Water Act. Nathan Rott, NPR News.

(SOUNDBITE OF THEO CROKER'S "REAL EPISODE") Transcript provided by NPR, Copyright NPR.

Nathan Rott is a correspondent on NPR's National Desk, where he focuses on environment issues and the American West.