The president has ordered a review of Obama-era environmental rule that expanded federal oversight of waterways, wetlands
N.C. COAST -- Developers and other industry officials are praising President Donald Trump's decision to issue an executive order scaling back the federal government's push to regulate isolated and non-navigable waters even as conservationists are concerned it represents the administration's opening salvo in an effort to reduce environmental protections beyond their existing levels.
This week Trump began the lengthy federal rule revision process by ordering the Environmental Protection Agency (EPA) to revise the most recent iteration of the Waters of the U.S. (WOTUS) rule, which was passed in 2015 but has never been enforced because the 6th Circuit Court of Appeals ordered a stay just months after it was introduced.
Waters of the U.S. rules are used to decide where the federal agencies, such as the EPA and Army Corps of Engineers, have enforcement power. The term "waters of the U.S." was first used in 1972's Clean Water Act and virtually immediately led to legal strife and agencies' efforts to define the vague term -- questions the Clean Water Rule issued by the corps and EPA in May 2015 were geared to answer.
Some, such as Geoff Gisler, a senior attorney at the Southern Environmental Law Center, argue WOTUS rules should be interpreted broadly.
"You can't protect big rivers unless you protect little streams. You can't protect the Cape Fear River if you only protect the Cape Fear River," he said. "If you don't protect the Northeast Cape Fear River and the Black and the Brunswick rivers -- all those rivers that flow into the Cape Fear and the streams that flow into those and the wetlands next to them -- then you're never going to be successful in protecting the Cape Fear and the sounds and the places where people are fishing and swimming and boating."
The 2015 rule, Gisler noted, was based on more than a million public comments and decades of research -- a process the EPA would need to repeat before suggesting an alternative rule. Any new rules are also likely to face legal challenges.
Less red tape
Officials from the farming and development communities celebrated Trump's executive order. Those industries have long argued the rule creates red tape for their industries and gives the federal government jurisdiction in areas that are not navigable and do not impact watersheds.
Commercial realtors in the Cape Fear region were one of the loudest voices of local opposition to the 2015 WOTUS rule, said Shane Johnson, the COO and governmental affairs director of Cape Fear Realtors.
Of the 2015 rule, Johnson said, "This really would not be good for anyone. It's a direct strike to our private property owners. In our estimation, it would have been a taking. It certainly has a dampening effect on homebuilding and development."
Rather than expanding where the federal government has jurisdiction, the 2015 rule provided clarity to agencies already making case-by-case decisions about seasonal waters and wetlands lying within the watersheds of jurisdictional waters, said Victor Flatt. Federal agencies were discovering the bodies defined in the 2015 rule typically impacted larger tributaries either via groundwater or when they began flowing in certain seasons, rulings regulators were making one-by-one rather than having overarching rules.
"It became this big political brouhaha and part of this political story about Obama's overreach and it didn't really change anything. The only thing it changed is it made it more efficient," said Flatt, an environmental law professor at the University of North Carolina-Chapel Hill who also is the co-director of the school's N.C. Coastal Resources Law, Planning and Policy Center.
'All comes together'
In his executive order, Trump ordered the EPA to consider Justice Antonin Scalia's opinion in the 2006 U.S. Supreme Court case Rapanos v. United States. Scalia argued WOTUS rules only give federal agencies jurisdiction if there is permanent flow or a continuous surface connection.
Travis Graves, Sound Rivers' Lower Neuse Riverkeeper, is concerned the order represents the Trump administration's first effort to scale back the EPA at the expense of estuaries and other natural habitats.
"In New Bern, they have a phrase: 'Where it all comes together.' And that specifically talks about the rivers," Graves said, adding, "Any pollution runs downstream, that's what we tell everybody. We're all downstream from somewhere, and these small tributaries that are in the WOTUS rule that they're fighting are just as vital to the estuary as someone's house that's on the shoreline."
Reporter Adam Wagner can be reached at 910-343-2389 or Adam.Wagner@StarNewsOnline.com.