EPA proposes rollback on what bodies of water are subject to Clean Water Act

In this 2016 photo, people fish along the Sacramento River in the San Joaquin-Sacramento River Delta, near Courtland, Calif.
In this 2016 photo, people fish along the Sacramento River in the San Joaquin-Sacramento River Delta, near Courtland, Calif. AP file

The Environmental Protection Agency said Tuesday it will make sure federal clean water regulations do not apply to thousands of bodies of water in the United States.

Acting EPA Administrator Andrew Wheeler announced Tuesday that he’s proposing a roll back environmentally friendly rules first attempted three years ago when Barack Obama was president — a blow to environmentalists and a victory for anti-regulation Republicans and farmers.

Wheeler said Tuesday he would roll back those rules so the Clean Water Act would only apply to traditional navigable — deep enough to be traveled on by boat — water, tributaries to navigable waters, certain ditches large enough to be used for navigation or subject to tides, lakes and ponds, impoundments and wetlands adjacent to any of those.

Wheeler said those limits made it clear to private citizens what would or would not be subject to those regulations, and emphasized that the EPA’s position was local entities should have more control over their own lands and waters.

“Property owners will be able to stand on their property and determine what is federal water without having to hire outside professionals,” Wheeler said.

The precise impact on California remains uncertain.

Wheeler said California has stricter regulations and wouldn’t be affected by the change. Tim Moran, spokesman for the State Water Resources Control Board, said, “Regardless of the proposed federal action, the state’s waters and wetlands continue to be protected under state laws.”

The state board has been working on policies of its own, known as Waters of the State, to provide even stricter protections for wetlands. Moran said those rules should be finalized next year.

But Rachel Zwillinger, water policy advisor at Defenders of Wildlife, called the announcement “potentially a huge deal for the state of California. It would remove federal protections for a huge number of ... streams that are critical for the water we drink and sustain fish and wildlife.”

She said the old rules are crucial in a state like California because of its vernal pools — seasonal ponds that dry up in the summer but provide a critical habitat for plants and animals in the rainy season. Millions of acres of vernal pools have disappeared over the past century in California, and environmentalists say what’s left must be protected.

Farmers particularly have raised alarms about the expanded rules, saying they were too broad, created an undue burden and interfered with their ability to farm on their own property.

Northern California farmer John Duarte, who became attracted a nationwide following of conservative supporters, was accused of plowing over protected wetlands on his property in 2012, which a judge said was a violation of the Clean Water Act.

Facing tens of millions of dollars in fines in a trial to establish penalties, Duarte agreed in a settlement in 2017 to pay $1.1 million to the federal government.

“I think the Trump administration rollback ... is going to be good for landholders and for farmers and for that matter anybody who wants to eat affordably,” Duarte said. He said federal agencies for decades “have been expanding the definition of what’s a wetland” and restricting what farmers such as him can do on their lands.

Duarte, who was fined for plowing up a wheat field in Tehama County, said he wishes he could have kept fighting the government over his case, saying he was trying to protect “farmers throughout the country.” But his lawyers told Duarte, who also operates a nursery near Modesto, that he’d be “destroyed financially” if he didn’t settle, he said.

The California Farm Bureau Federation also hailed the Trump administration’s announcement, saying the existing rules have “undermined farmers’ efforts to work cooperatively with government agencies to protect water and land.”

The Obama-era rules had been stalled nationwide, first due to court challenges and then due to actions of President Donald Trump’s administration.

Those rules defined what could come under federal jurisdiction broadly and required some property owners to submit bodies of water for case-specific analysis that have a “significant nexus to traditional navigable waters, interstate waters, or the territorial seas.”

The most recent Supreme Court decision on the issue in 2006 said if a water body had a “significant nexus” to a federally protected waterway then it was connected and fell under federal jurisdiction. But it failed to clearly define what that meant, except in one specific situation.

Kate Irby is based in Washington, D.C. and reports on issues important to McClatchy’s California newspapers, including the Sacramento Bee, Fresno Bee and Modesto Bee. She previously reported on breaking news in D.C., politics in Florida for the Bradenton Herald and politics in Ohio for the Cleveland Plain Dealer.