Court decision reopens water rule debate

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A decisive win for the environment in Kansas.

Or an unsettling court decision that leaves Kansas business interests jittery.

A federal judge in Arizona recently reopened an old debate over how far the federal government can go to regulate the country’s streams, marshes and wetlands.

U.S. District Judge Rosemary Márquez vacated a 2020 Trump administration regulation that limited federal environmental protections for the country’s streams and wetlands.

Márquez found that the former administration’s rule-making process was marked with significant errors and that leaving the regulation in place could lead to “serious environmental harm.”

It was a big win for environmentalists who believe the decision will effectively protect up to 50% of wetlands in Kansas that were threatened by the Trump administration rule.

“It’s a huge victory. I can hardly underestimate the value of having the court vacate this so we can move forward,” said Elaine Giessel, chair of the Kansas chapter of the Sierra Club.

Elaine Giessel

“In Kansas and in the West in general, the Trump rule was very harmful to people, to wildlife habitat, everything,” Giessel said.

But the court decision also was a setback for farmers, ranchers, developers, and oil and gas interests who are now faced with regulatory uncertainty.

Márquez’s decision — even from Arizona — has distinct implications for the Kansas farmers and ranchers who fear that they could be limited by new regulations that are now being developed by President Joe Biden’s administration.

“We’re concerned about the ruling. We don’t think it’s appropriate,” said Aaron Popelka, the Kansas Livestock Association’s vice president of legal and governmental affairs.

“It will definitely cause some confusion and potentially put some projects on hold while folks figure out where jurisdiction lies,” Popelka said.

The business community embraced the Trump administration’s rule because it replaced regulations adopted during the Obama era that were seen as more onerous.

Farmers opposed the Obama administration’s rules because they believed those regulations would impose costly burdens to obtain permits, even if it was just for plowing dirt near ditches or dry stream beds where water flows only after it rains.

Aaron Popelka

“In our opinion, it was too broad and it went beyond what the Clean Water statute allowed,” Popelka said.

The Obama administration’s rule — known as “waters of the United States” or WOTUS — substantially redefined what waterways would be federally protected for the first time in more than two decades.

While some argued the new rule was a major expansion of federal jurisdiction — it was estimated to cover 60% of U.S. waterways — others contended federal agencies interpreted the rules more narrowly than earlier regulations.

The Obama administration’s rule proved to be divisive, with a group of 31 states and other plaintiffs challenging it in court, contending it was unconstitutional and it exceeded the scope of the Clean Water Act.

Between 2015 and 2019, several federal district courts blocked implementation of the law, according to a report by the Congressional Research Service.

In 2019, two federal district courts ruled that the Army Corps of Engineers and U.S.
Environmental Protection Agency violated the Administrative Procedures Act, and one judge found that the rule exceeded the authority of the Clean Water Act.

As a result of the lawsuits, the 2015 rule at one point was blocked in 27 states, including Kansas, and in effect in 22 others, the Congressional Research Service reported.

Former President Donald Trump called it “one of the most ridiculous regulations of all” and set out to repeal the Obama administration’s water rule.

The Trump administration rolled back the Obama-era protections after a number of industries, including agriculture, home builders, mining, and oil and gas, complained that the law reached too far.

The Trump rule, for example, eliminated protections for ephemeral streams, which are typically dry until after a rainfall but that environmentalists believe need to be protected so pollutants won’t be carried into larger streams and rivers.

“We shouldn’t have to apply for a permit every time we turn over dirt on land that is dry most of the year,” the American Farm Bureau said in a statement.

“What’s more — ephemerals and ditches are not, and should not be considered, ‘waters of the U.S.,'” the group said.

The decision to set aside the Trump rules — known as the Navigable Waters Protection Act — was disconcerting for agriculture interests.

“Farmers finally had environmentally responsible regulations that brought clarity to clean water efforts,” American Farm Bureau Federation President Zippy Duvall said in a statement.

“This ruling casts uncertainty over farmers and ranchers across the country and threatens the progress they’ve made to responsibly manage water and natural resources,” Duvall said.

Carl Harris

It was similar to a view voiced by Wichita home builder Carl Harris, past chairman of the Kansas Building and Industry Association.

“The concern for us is that if they vacate these rules, we need to have a constant rule, a rule that we can live by,” Harris said.

“Our members are tired of having to hire teams of wetlands consultants and attorneys to tell us how we can use our own land,” he said.

The court decision, he said, makes some bodies of water now subject to federal regulations that weren’t under the Trump rules.

“It’s a major concern to us,” he said. “It’s going to limit development and increase the cost of development.”

Mark Ryan, former senior counsel at the EPA who helped write the Obama administration’s water rules, questioned how much of an impact the judge’s decision would have on business interests in states where wetlands aren’t as plentiful.

Kansas has about 435,000 acres of wetlands, or roughly 0.8% of the state’s total land area, according to a U.S. Geological Survey report.

“For Kansas, I think the bottom line is it’s not really going to have any effect,” Ryan said.

“The only people it’s going to affect really are developers wanting to develop wetlands…or farmers wanting to develop these wetlands that have been not been farmed in the past.”

Nevertheless, Giessel think Kansas needs to protect what wetlands it has.

“I think the queston is in a state where there is so little wetlands area, protecting what we have is pretty critical,” she said. “Even if it’s very few, they’re critical.”

Ryan said he’s bewildered why the agriculture community was upset over the 2015 rule.

“A lot of the Midwest states have tons of converted wetlands that were converted years ago to cropland,” he said.

“That’s all considered prior converted cropland. It’s exempt,” he said. “You don’t need a permit to keep farming it.”

The federal judge in Arizona found that there were clear regulatory differences between the rules adopted under the Obama and Trump administrations.

Rosemary Márquez

Márquez, appointed to the bench by President Barack Obama, pointed out that 76% of the water bodies reviewed during a 10-month period by federal regulators in 2020 and 2021 didn’t qualify for protection under the Trump rule.

Further, federal agencies found that 333 projects that would have required a regulatory review under the Obama water rule would not have been subject to the same scrutiny under the Trump rule, the judge said.

The judge also found that the Trump water rule — written by the EPA and the Army Corps of Engineers — appeared to have ignored the EPA’s scientific findings that suggested allowing pollution in small water bodies could hurt the ecosystems of larger bodies of water.

The Sierra Club had fought against the Trump rule because it excluded ephemeral streams and wetlands not connected to other surface waters, removing protections for playa wetlands in western Kansas that help recharge the Ogallala aquifer.

“The Trump rule, like every single decision made by the Trump EPA, was designed to help polluters instead of the public,” Giessel said.

“Protecting our wetlands and headwater streams is critical to providing safe and affordable drinking water for everyone,” she said.

Kansas environmental regulators say they were comfortable with the Trump rules.

“The Trump Administration rule aligned with the existing Kansas state law which provided a safety net for protecting all waters of the state, including marginal waters, from critical water quality and ecological impacts including wastewater and stormwater impacts,” said Matt Lara, spokesman for the Kansas Department of Health and Environment.

The judge’s ruling in Arizona cast aside the Trump regulations, meaning the environmental protections under the 1986 Clean Water Act – as interepreted by 2008 guidance issued by federal ragulators  – will remain in place for now.

The pre-2015 protections are generally considered not to be as broad as the Obama rule but also not as narrow as the Trump rules.

For now, the U.S. Army Corps of Engineers, which has oversight of permitting under the Clean Water Act, says it has halted implementation of the Trump rules and is interpreting the law based on regulations in place before 2015.

The judge’s decision means that barring some kind of successful appeal, Biden’s administration won’t have to work through the administratively cumbersome task of repealing the Trump rule.

Vacating the rule, Giessel said, allows the EPA and the Corps of Engineers — the two agencies that regulate wetlands — to move faster to adopt a new rule.

“They’re not going to have to go back and remove the Trump administration’s rule before they start making a new one,” she said.

The Biden administration has already indicated it plans to develop new regulations, which some observers believe will come down somewhere between Obama’s water rules and the Trump rules.

New EPA Administrator Michael Regan told a congressional budget subcommittee earlier this year that he didn’t  intend to go back to the 2015 water rule.

Michael Regan

“We don’t have any intention of going back to the original Obama Waters of the U.S. verbatim,” Regan said.

“We don’t necessarily agree with everything that was in the Trump administration’s version as well,” he said.

“We’ve learned lessons from both,” he said. “We’ve seen complexities in both and we’ve determined that both rules did not necessarily listen to the will of the people.”

Federal regulators have already been holding public meetings as they develop new regulations to replace the rules adopted by the Trump administration.

The Sierra Club wants a final rule for regulating water “based on sound science.”

“Protecting our waterways preserves important ecological functions like flood risk reduction, groundwater recharge, wildlife habitat and water quality protection,”  Giessel said.

“The final rule must recognize the important environmental justice concerns around our wetlands and waterways, including those of the indigenous tribes and marginalized communities that depend on them for survival,” she said.

The state environmental department promises to be vigilant as the rules are adopted.

“We will work toward not having the Federal rule overrule current state law,” KDHE spokesman Lara said in an email.

“Kansas will engage with the EPA in continuous discussion on suggested definitions and implications for implementation of all aspects of the Clean Water Act,” he said.

Earlier this month, the Kansas Livestock Association joined with the National Cattlemen’s Beef Association to offer suggestions to the EPA about what a new water rule should look like.

The group said any new rule should not cover ephemeral streams and include exemptions for stock ponds and wetlands that have since been converted for agriculture use.

APAC-Kansas, which runs asphalt and ready-mix concrete plants in Kansas, also called on the Biden administration not to depart from the rules promulgated under Trump.

The company said in a letter to the EPA the Trump rule balanced protection of federal waters with the need for a clear and consistent rule.

A new rule, the company said, “will result in confusion and uncertainty for all stakeholders and increased time and effort that will impact our ability to provide materials needed for vital infrastructure.”

The scope of what waters are regulated by the Clean Water Act, the company said, “will have a direct impact on the costs of planning, financing, constructing, and operating our facilities.”