The Trump admin­is­tration asked the Envi­ron­mental Pro­tection Agency to reject Rapanos v. United States by repealing a 2015 Obama-era reg­u­lation under the Clean Water Act. I Wiki­media Commons

The Trump admin­is­tration asked the Envi­ron­mental Pro­tection Agency to reject Rapanos v. United States by repealing a 2015 Obama-era reg­u­lation under the Clean Water Act. 

Repealing the law removes many sea­sonal streams, small waterways, and wet­lands from federal over­sight and pro­tection. Cit­izens who live in states without local EPA depart­ments to enforce federal pro­tec­tions are therefore not obligated to follow federal law. 

Without the enforcement of federal law, people in states such as Indiana are free to dump chem­icals into wet­lands or sea­sonal streams, which are not pro­tected under Trump’s new law. 

 Other than being an envi­ron­mental dis­aster, the biggest problem with this less restrictive law is that it com­pletely rejects the standard for what the phrase “waters of the United States” means as defined by the U.S. Supreme Court in 2006 under the Rapanos test, which is used by courts to determine whether the federal gov­ernment has juris­diction to protect a water source.

Sup­porters of the new law argue that it will make it easier for farmers and landowners to work near small waterways without getting a permit. 

EPA Admin­is­trator Andrew Wheeler said the rule “strikes a balance” between bureau­crats in Wash­ington, D.C., and state offi­cials in caring for the nation’s natural resources. 

But under the pre­vious standard, water from agri­cul­tural dis­charges were exempt from federal pro­tection. The  law that Trump repealed hurt devel­opers, the fossil fuel industry, and mining com­panies because it pre­vented them from pol­luting the nation’s water. 

And although some con­ser­v­a­tives and right-wing think tanks, like a senior researcher at the Her­itage Foun­dation, have echoed Wheeler and praised Trump for returning this reg­u­latory power to the states, these groups mis­un­der­stand sep­a­ration of powers. 

As the exec­utive, Trump does not have the authority to interpret the law. The Supreme Court holds that authority — and they already did this for him.  

With these new laws, Trump has aban­doned judicial precedent. Although Obama’s 2015 law was only put in place in 20 states, the Rapanos test is the federal standard for deter­mining which waterways are pro­tected under federal juris­diction. If and when this new law is chal­lenged in a lower court, it will fall flat on its face because lower courts are bound to uphold the decision of the Supreme Court, not Trump. 

In the Rapanos case, the late Asso­ciate Justice Antonin Scalia wrote the opinion of a four-justice plu­rality, inter­preting the term “waters of the United States” as meaning “rel­a­tively per­manent, standing, or con­tin­u­ously flowing bodies of water” that are con­nected to tra­di­tional nav­i­gable waters, as well as wet­lands with a con­tinuous surface con­nection to such water bodies, according to the United States Department of Justice. 

The plu­rality defined “rel­a­tively per­manent”  in Footnote No. 5, noting that it “does not nec­es­sarily exclude streams, rivers, or lakes that might dry up” due to a drought. 

Under the new rule, these “rel­a­tively per­manent” streams as defined by the court, are not pro­tected under federal over­sight. Approx­i­mately half of the nation’s wet­lands will no longer be pro­tected under the new federal law, according to the National Wildlife Fed­er­ation. 

Addi­tionally, Scalia wrote that the Clean Water Act “cat­e­go­rizes the channels and con­duits that typ­i­cally carry inter­mittent flows of water sep­a­rately from ‘nav­i­gable waters,’ including them in the def­i­n­ition of  ‘point sources.’”  

According to 33 U.S. Code § 1362, “the term ‘point source’ means any dis­cernible, con­fined and dis­crete con­veyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, dis­crete fissure, con­tainer, rolling stock, con­cen­trated animal feeding oper­ation, or vessel or other floating craft, from which pol­lu­tants are or may be dis­charged. This term does not include agri­cul­tural stormwater dis­charges and return flows from irri­gated agri­culture.”

The new law rejects the legal def­i­n­ition of a “point source,” making it impos­sible for criminal inves­ti­gators of the EPA to protect these sources of water that would fall under federal reg­u­lation, according to the Rapanos test. 

Asso­ciate Justice Kennedy wrote a con­curring opinion in Rapanos and took the Clean Water Act one step further by arguing that non-nav­i­gable waters fell under the act if they bore a sig­nif­icant “nexxus.” This essen­tially means that if someone dropped a pop­sicle stick in that water source and it flowed to another creek, stream, lake or went all the way to the ocean, then it was pro­tected under federal law. 

Trump’s new EPA law rejects Scalia and Kennedy’s inter­pre­ta­tions.

In addition to ignoring the supreme law of the land, the new law dis­re­gards 1,200 pub­li­ca­tions of peer-reviewed sci­en­tific lit­er­ature sum­ma­rized in a 2015 EPA report. 

In response to Trump’s new law, the Public Employees for Envi­ron­mental Respon­si­bility and 44 other sci­en­tists and admin­is­trators of gov­ernment envi­ron­mental and con­ser­vation agencies wrote a letter to EPA Acting Inspector General Charles Sheehan. In the letter, the employees said the new law is not grounded in accurate science and mis­char­ac­terizes “unsci­en­tific content.” 

Even the EPA’s own Science Advisory Board crit­i­cized Wheeler in a draft letter for the process he used to enact the law. 

But the board should expect nothing less when the head of the EPA was a former coal-mining lob­byist. 


Julia Mullins is a junior studying pol­itics. She is the city news editor for The Col­legian.