Air Date: Week of September 20, 2019

Wetlands serve as important habitat and provide ecosystem services like carbon sequestration, water storage and water purification. (Photo: LivingLandscapeArchitecture, Flickr, CC BY-SA 2.0)

The Trump administration’s latest rollback of Obama-era rules concerns the Waters of the United States, or WOTUS, policy, which had given the EPA authority to protect wetlands, small tributaries and ephemeral streams from pollution, industrial activities, and development. Vermont Law School professor Pat Parenteau explains to Host Steve Curwood what the rollback could mean for water quality and wetlands conservation across the country.

Transcript

CURWOOD: It’s Living on Earth, I’m Steve Curwood.

Wetlands are ecological powerhouses that clean our water, take up carbon dioxide, and provide habitat for birds, young fish, insects and so much more. The United States has already lost about half of its wetlands since the 1700’s. And we could lose still more, thanks to a Trump administration rule rollback. The Waters of the United States, or WOTUS rule, gave the Environmental Protection Agency authority to regulate any flows upstream of the nation’s major rivers and lakes. Here to explain what’s at stake is Pat Parenteau of the Vermont Law School. Pat, welcome back to Living on Earth!

PARENTEAU: Good to be with you, Steve.

CURWOOD: Pat, we need a brief refresher here. What kind of waterways was the Obama administration's Water of the United States, or WOTUS, rule meant to protect?

PARENTEAU: Well, the big controversy was over what are called headwater streams. These are obviously the places where the larger river systems -- think Missouri River, Mississippi River, and so forth -- begin. And the Obama administration was trying to clarify how far up into the watershed federal regulation would go. They were trying to capture sources of pollution, and also sources of drinking water. Fully two-thirds of the areas that they identified for federal protection are source water areas for public water supplies. So that was the driving force, they did a lot of scientific analysis of the importance of these smaller headwater streams. And of course, in the western United States, a lot of the streams are what we call ephemeral; they don't flow year-round, they flow in response to heavy rain or snow melt. And so the Obama administration was simply following the science from their, their point of view, and saying, if we're going to protect the waters downstream, the big lakes and rivers, we're going to have to go up into the watershed and protect those areas that feed down into the bigger water.

CURWOOD: I guess if you have garbage in, you're going to get garbage out to the main water.

PARENTEAU: Yeah, that's kind of the system. That's a hydrologic cycle. That's what that word means, things are in a system. And the Obama administration's approach was to look at watersheds as a system and go where the pollution was.

CURWOOD: Remind us, Pat, why these water systems are so important. Yes, we need drinking water, and...?

PARENTEAU: Oh, yeah, so the wetlands in particular, that's, that's the one category of waters that has been really reduced in what the Trump administration is proposing. They perform all kinds of important services, they're naturally flood control. And you think about the kinds of record flooding we've been seeing, particularly this year; there's still flood conditions five months after those heavy rains in the spring. You know, wetlands are sponges, and they soak up that excess water and help protect downstream communities. Wetlands also take up a lot of pollutants. If you think about nutrient pollution, which is causing these awful algal blooms around the country with some cyanobacteria involved with it, which is a public health threat. Those kinds of conditions are threatening public water supplies, for example, the city of Toledo, Ohio, and Lake Erie. And so wetlands are a great source of protecting drinking water sources. And then wetlands also provide habitat for fish and wildlife; they're carbon sinks that help deal with climate change issues. So they have an awful lot of really important services for human beings. And without federal protection, the majority of states don't have laws that restrict filling and draining and pollution in wetlands. So it's either the federal government or nothing in some places.

CURWOOD: Please give me an example of a region or a state that could really get hit hard in terms of public and ecological health with this.

PARENTEAU: Yeah, well, Arizona would be, you know, Exhibit A on that score, because 90% of Arizona's waterways are what are called either intermittent or ephemeral, which simply means they don't flow all the time. And some major river systems like the Santa Cruz River dries up. I know, I've been there, and I've seen it -- I think, maybe you have, too, Steve -- but flows right through Tucson, Arizona; but it's dry major portions of the year. So, big question mark, about whether even big rivers like that, that dry up periodically for extended periods of time, would still be covered. What the Trump rule is saying is that if the only thing that's causing the flow in the river is a major rain event, then it's not covered, it's considered ephemeral. So all throughout the semi-arid West, you're going to see major loss of federal protection and regulation for these waterways.

CURWOOD: So who's been pushing for this rollback of the Waters of the United States rule?

PARENTEAU: Well, the Farm Bureau has been kicking the mule, as they say on this one. They've been the ones that have really gone after the clean water rule, and now are cheering in support of Trump's repeal of the rule. The Association of Home Builders is close behind. They have a lot of sprawl development going on around the country in streams and wetlands. And they are opposed to strong federal permit requirements that stall their development. So those two, I think, are the chief protagonists in this one.

CURWOOD: So, given this rollback of this Waters of the United States rule that the Trump administration has announced -- should it stick, what kinds of activities would farms and industries be allowed to do on wetlands that were previously protected?

PARENTEAU: Well, you know, they're going to be able to discharge pollutants from pipes and ditches and a variety of what we call point sources, as long as they move that point of discharge above where the proposed new mark, the new rule is going to say federal jurisdiction ends. And then you have this argument that the Trump administration is making -- "well, but the states will pick up the slack, they'll step up and start regulating those sources that we no longer will regulate." But when you look at the laws of these various states, what you find is that over half of the states have laws on their books which say they will not regulate beyond what the federal Clean Water Act requires. "No stricter than federal," is the way they put that. And no surprise, the states that are arguing for the Trump administration to remove federal protection happen to be those very same states that have laws saying we will not go further than what the federal law requires us to do. So this is going to leave a huge gap in major areas of the country, where we will not have significant regulation to protect these water sources. And the job will be for people to try to lobby their state legislatures to restore some of that protection. Unless, of course, the courts step in here and stop some of this Trump rollback. And then a new administration may come along and restore some of these protections. But right now, we're in kind of a chaotic situation, frankly.

CURWOOD: What other kinds of activities would be allowed if this rollback of the Waters of the United States goes forward?

PARENTEAU: Well, you know, spills of oil and hazardous substances that do occur on a chronic basis, from oil pipelines, gas pipelines, containment tanks, and other kinds of structures that contain these potentially toxic and hazardous materials. The Clean Water Act has a program to deal with those spills, both requiring spill prevention and containment and clean up requirements, but also liability, significant liability for failure to prevent and deal with spills and leaks. And that all depends on whether or not these waters that remain after the Trump rollback are going to be covered by that requirement. So you could see pipelines crossing wetlands and streams that are no longer subject to the Clean Water Act, and therefore, the spill containment requirements wouldn't apply. So there's a whole category of industrial activity that depends on the definition of the waters that are covered by the Clean Water Act.

CURWOOD: What about mining?

PARENTEAU: Mining, the same thing. If you're mining in headwaters -- I'm dealing with a big copper mine in Arizona right now where they're in, you know, very high in the Santa Rita mountains. These are incredibly important, biologically important areas. They're called the Sky Island habitats. They even have habitat of the jaguar -- one or two, anyway; jaguars that travel up from Mexico. So these are high quality areas, but the water that flows through them is ephemeral. It's these intermittent streams. But that's all the water there is, in these systems. And what Trump is proposing would mean copper mining, this massive copper mine a half a mile deep, mile across, would be exempt from any kind of requirement for dealing with pollution and de-watering of these streams. So lots of different impacts, some of which you can foresee, some of which will be hard to foresee.

CURWOOD: And how correct is it to say with this rollback of the Waters of the United States that developers are going to be able to, well, literally destroy areas that are not considered wetlands?

PARENTEAU: There's all kinds of wetlands that don't have this "continuous surface connection" that the Trump rule is requiring. And in fact, many wetlands are fed by groundwater; some wetland areas are the result of an overflow from a lake or a river; you think the Lower Mississippi River, most of those great bottomland hardwoods swamps, they're wet because the Mississippi River overflows its banks, has traditionally and is even more so now. And if you take away protection for some of those areas, you're removing some of the most important biological resources in the country. We've already destroyed 55% of the wetlands that used to exist in the United States. So every last wetland we have is doing all the wonderful things that wetlands do. But if they don't have federal protection, it's going to be hard to keep them in place.

CURWOOD: Pat Parenteau is a former general counsel for the regional office of the Environmental Protection Agency; he's now a Professor of Environmental Law at Vermont Law School. Pat, thanks for taking the time with us today.

PARENTEAU: Oh, you're welcome Steve. Enjoyed it.

 

Links

NYTimes | “Trump Administration Rolls Back Clean Water Protections”

About Pat Parenteau