A new state law preventing environmental regulations from being stricter than the federal government’s could see a test under the Trump administration’s proposal to scale back national water standards.
The proposal to redefine the Waters of the U.S. (WOTUS) rule would scale back regulations adopted by the Obama administration that set which waters receive protection under the Clean Water Act. The Obama rules have been blocked in most U.S. states pending legal challenges, while the Trump administration has delayed the rules elsewhere, including in Michigan.
Trump’s deregulation proposed in December has the support of major small business and agriculture advocacy groups, including the Michigan Farm Bureau.
“We feel it provides clarity, certainty and helps farmers with their ability to know what’s regulated and what’s not on their farms,” said Laura Campbell, manager of the Michigan Farm Bureau’s agricultural ecology department.
Critics say the rules jeopardize the protection of thousands of waterways such as wetlands from development and risk disturbing critical ecosystems that help maintain water quality.
Michigan is one of 22 states where the Obama rules are in place but delayed. Attorney General Dana Nessel on March 15 withdrew the state from a lawsuit challenging the rules that former Attorney General Bill Schuette had joined, a move Campbell called “frustrating.”
Amid the legal uncertainty around WOTUS, Michigan is also one of just two states that does its own wetland permitting. Some advocates say the Trump administration’s proposal may not affect Michigan as much as other states.
However, former Gov. Rick Snyder — to the surprise of both business and environmental groups — signed a law during his last days in office that prevents Michigan from adopting environmental regulations that are stricter than the federal government’s own rules. The state would need a “clear and convincing need” to exceed federal standards.
While it could take months or years to settle the legal dispute over WOTUS, Trump’s rules could in effect significantly scale back Michigan’s laws. Public comments on Trump’s proposal are being accepted until April 15.
“This WOTUS essentially scares me,” said Donald Uzarski, director of Central Michigan University’s Institute for Great Lakes Research.
Uzarski, a wetland ecologist, was appointed by former Gov. Jennifer Granholm to the state’s Wetland Advisory Council.
“If you severely weaken federal law like this proposed WOTUS does, it puts Michigan at risk,” he said.
Uzarski said Trump’s rules could affect roughly 550,000 acres of wetlands, 4,200 lakes and 36,000 miles of streams in Michigan alone. The concern is subjecting them to development.
The Trump administration says its rules are a baseline and states are free to go beyond that. However, state laws that are stricter than federal laws are “constantly being challenged in Lansing,” Uzarski said.
Additionally, House Democrats introduced a bill in March to repeal the state’s no-stricter-than-federal law, although its future is uncertain as Republicans control the House and Senate.
While the new federal rules are pending, Dave Dempsey, senior policy advisor for the advocacy group For Love of Water (FLOW), says Michigan is “less affected than many other states by the controversy” due to “pretty strong” protections for state wetlands and inland lakes. Michigan passed one of the nation’s strongest wetland protection laws in 1979. In 1984, the state was authorized to administer the federal Clean Water Act in most parts of the state.
State laws shield about 80 percent to 90 percent of what would be excluded under Trump’s WOTUS, Dempsey added. Ephemeral streams, or those only flowing after a rain event, would likely be affected, although these “tend to be more of a western (U.S.) issue,” he said.
“There may be some waters at the margins that might be affected, but for the most part, I think we’re in pretty good shape,” Dempsey said. “That doesn’t mean I think it’s a good policy Trump is pursuing.”
For supporters of Trump’s rules, the goal is to simplify what waters qualify under the Clean Water Act. The Farm Bureau’s Campbell says Trump’s rule would leave fewer waters “up to interpretation” as to whether they qualify under the Clean Water Act.
She added that Obama’s 2015 rules extended federal jurisdiction to features such as drains that “we don’t feel the Clean Water Act ever contemplated” because violations under the Act carry criminal penalties.
“As a whole, we feel (Trump’s) rule is worlds ahead in terms of being able to go out into the countryside, look at a water feature and say this is regulated or this isn’t,” Campbell said.
The Michigan Farm Bureau says the 2015 rules would have regulated small bodies of water on farms on a case-by-case basis, while exemptions would not cover fertilizer or pesticide application, “or even those exempted activities like plowing or tilling if they change the shape or flow of a regulated water,” according to the group’s website. “This could hurt all farmers, and devastate many specialty crop industries in Michigan that operate in or near wetlands.”
The National Federation of Independent Business said last month the 2015 rule “radically expands federal authority over private property across the country.”
“Importantly, this proposal offers much-needed practical guidance to small businesses and other landowners who have long struggled in trying to figure out whether they may safely use their lands,” according to the NFIB. “If finalized, the new rule would provide easily understood bright-line standards.”
Critics dispute the purported simplicity of the new rules.
“It simplifies in that there’s no more regulation for many of these systems,” CMU’s Uzarski said. “I don’t know what was so complicated about the 2015 WOTUS. It was pretty clear cut.”
Alan Steinman, director of the Grand Valley State University Robert B. Annis Water Resources Institute, says the science behind the new rule is vague and opens it to litigation.
“I understand businesses want certainty; that’s a very reasonable expectation,” he said. “There’s a real basis for the fact that these decisions are not made on sound science. At least the environmental and scientific side is going to say: ‘This is not defensible.’”
Science is ‘totally flawed’
Steinman says the Trump rules “move away from the whole watershed concept” to cover just waters that are navigable. The rules do not cover groundwater and ephemeral streams that flow after rain events and connect downstream, he said.
The proposed rule would reportedly eliminate federal protections for more than 51 percent of wetlands and 18 percent of streams without permanent connections to waterways across the U.S.
“In the larger context, (the proposed rules) look at connectivity only in terms of hydrology, not with respect to biology and chemistry,” Steinman said. “It’s only surface water. It really restricts what water bodies would be covered. Surface and groundwater are conjunctive. The science is totally flawed when you look at that respect alone.”
“Ecologically, that doesn’t make any sense,” Uzarski said of separating protections for groundwater and surface waters. “There’s still really a strong connection.”
Steinman added that fewer wetland protections are another concern. Wetlands provide ecosystem services such as recharging groundwater, removing toxicants and providing wildlife habitat. Under Trump’s rules, wetlands would have to be connected to a water body or river to get protections, Steinman said.
“It becomes a philosophical decision if we want the presumptive protection in favor of habitat or development,” he said. “Everyone has a bias and a different approach. I want to make sure we don’t harm economic development, but I want to make sure the environment is protected in that process.”