Frosh Vows Action as Trump Administration Seeks Rollback of Water Protections

Another day, another regulatory rollback by the Trump administration. And another declaration by Maryland Attorney General Brian E. Frosh (D) that he is likely to seek legal redress.

The Trump administration on Tuesday issued a new Waters of the U.S. (WOTUS) rule, seeking to define what water bodies are covered by Clean Water Act protections. In 2015, the Obama administration issued its version of WOTUS, which greatly expanded water protections. It immediately became the target of multiple lawsuits by industry and Republican attorneys general, and President Trump put the brakes on the rule soon after he took office.

The administration’s new version of WOTUS, issued by the Environmental Protection Agency and the U.S. Army Corps of Engineers, proposes to break the type of waterways protected by the Clean Water into six categories:

• Traditional navigable waterways, which will remain federally regulated as they have been since Clean Water Act protections were first enacted.
• Tributaries to traditional navigable waterways.
• Ditches that function like a traditional navigable waterway, or contribute flow to a traditional navigable waterway.
• Lakes and ponds.
• Impoundments, such as dams and rivers that form lakes and ponds behind them, which have been regulated since the Clean Water Act was updated in the 1980’s.
• Adjacent wetlands.

The new WOTUS rule excludes any waters that are not included in the six regulated categories and also excludes groundwater, prior converted cropland, water control features and artificially irrigated areas, among others.

To environmentalists, this represents not just the elimination of the Obama-era expanded coverage, but a rollback of certain bedrock protections that have been on the books for decades. In an article yesterday, E&E News cited internal government documents showing that at least 18 percent of streams and 51 percent of wetlands nationwide would lose protection under the Trump rule.

Frosh implied that a lawsuit is inevitable.

“EPA’s latest proposal abdicates much of the federal government’s role in protecting and improving the health of our nation’s lakes, rivers, and other waterways,” he said in a statement. “The proposal would give polluters more room to degrade our nation’s waters, erasing decades of progress. EPA’s proposal is misguided, unlawful, and dangerous. We plan to oppose it vigorously.”

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