The Trump Administration is rolling back a federal rule that protects small waterways like wetlands and creeks. One expert says the move could leave more Florida farmers and conservationists stuck in court battles.
Since 1972, the federal government has protected major water bodies like the Everglades and the Apalachicola River under the Clean Water Act. But it’s still not clear how far those protections extend into unnamed creeks and swamps that flow into larger bodies. The Waters of the United States Rule of 2015 is supposed to clarify that, says Florida State University environmental law professor Erin Ryan.
“What this rule attempted to do was to impose some order and predictability that would allow these decisions to be made more uniformly," Ryan said. "And by preventing the rule from going forward, we’re kind of left where we were before. Which arguably is not better for either side.”
Critics have hounded the Waters of the U.S. Rule ever since the Obama Administration first implemented it. And legal challenges stalled the policy shortly after the roll-out.
Ryan says the water regulation debate mirrors a broader disagreement about the role and scope of the federal government. But because water so stubbornly defies local and state boundaries, she says a nationwide regulatory structure is necessary.
"Especially in a state like Florida that has so much diffuse water, so much non-navigable but connected waters," Ryan said. "I gather that this rule puts a huge percentage of the acreage in Florida under jurisdiction. And that seems, I think, psychologically threatening as well as meaningfully impacting what you can and cannot do with your land."
But repealing the guidance means judges and regulators have to make decisions on a case by case basis.
“Nobody benefits from extended, protracted, unclear, murky litigation. It’s expensive. It’s time consuming. And it’s working to the effect of blocking regulations that might be of interest to property rights communities who have opposed to the rule. But it can also work against them when its environmentalists bringing the lawsuits.”
In short, Ryan says, without the rule neither farmers nor conservationists are better off. The U.S. Environmental Protection Agency now begins the long process of rewriting and replacing the rule.