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Episode 32 of 52

032 | How the Trump Administration Is Undermining the Clean Water Act, Part One

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This is the fifth in a five-part series. You can find the first installment here. US Environmental Protection Agency boss Scott Pruitt is gone – not because of his environmental malfeasance, but because his $43,000 phone booth, his $100,000 trip to Disneyland, and his attempts to get his wife a lucrative job were too tacky even for an administration built on bling. His replacement, Andrew Wheeler, is less embarrassing but more dangerous. A coal lobbyist until last year, Wheeler is also a long-time adviser to climate-science denier James Inhofe and a sure bet to continue Pruitt’s policies – albeit with more stealth and fewer attention-grabbing abuses of power. Pruitt’s departure comes just one week after Justice Anthony Kennedy announced his own retirement from the US Supreme Court, and those two departures have overshadowed the publication of a document that Pruitt and Army Public Works boss Ricky James dropped on us last Friday – a document that mentions Kennedy 64 times and illustrates as well as anything the underhanded way Pruitt subverts environmental protections: not through argumentation, but through sabotage in the name of regulatory certainty (and just in time for summer break). It’s a document that will show up on the Federal Register any day now, and that you and any member of the public will then have 30 days to comment on, but which you’ll only understand if you know a bit of history, and that’s by design. It’s part of an effort to torpedo a Supreme Court opinion that Kennedy penned in 2006 – an opinion that builds on decades of precedent and practice, and that provides the foundation for the 2015 Waters of the United States (WOTUS) Rule (also known as the “Clean Water Rule”), which sets the ground rules for determining which of the waters of the United States are protected by the Clean Water Act (CWA). If Wheeler and James can rescind that rule, they’ll manage to undermine the popular Clean Water Act without the voting public knowing until it’s too late, and last week’s document is part of their effort to do just that. Specifically, it’s a supplemental notice to the Trump Administration’s year-old proposal to repeal the WOTUS rule and instead “recodify” the mess that predated it in accordance with an opinion written by the late Justice Antonin Scalia – an opinion mostly ignored by courts and practitioners, for reasons we covered in earlier installments of this series. Scalia, as we saw in part three, believed the CWA should only protect “relatively permanent, standing or flowing bodies of water” – basically, lakes rivers, and streams, but not the wetlands or creeks that feed them, and not waterbodies that only flow intermittently. The repeal would leave 80 percent of US waterways unprotected by federal authorities, and it’s one part of a multi-pronged attack on WOTUS that includes a two-year delay on its implementation and a more insidious order to ignore the local scientists and specialists who review dredging permits and instead “involve the Administrator’s Office early on in the process of developing geographic determinations” – a move that Kyla Bennett, director of science policy for Public Employees for Environmental Responsibility (PEER) described as “a crude Clean Water Act coup d’état.”</