On Trump's arroyo-phobic Clean Water Act rule

Plus: Congress kills another RMP, sows chaos; Trump endangers Endangered Species Act

🐓 Regulatory Capture Chronicles 🦊

Ephemeral desert water. Jonathan P. Thompson photo

The News: The Trump administration last week weighed in on the 53-year battle over what waterways are covered by the 1972 Clean Water Act — with a draft rule that would narrow the definition of “Waters of the United States,” or WOTUS. The rule would effectively remove federal CWA protections from hundreds of arroyos, rivers, and ephemeral streams in the Southwest, giving developers industries more latitude to alter or pollute those waterways. The public has until Jan. 5 to submit comments.

The Context: For years, the Environmental Protection Agency and Army Corps of Engineers—the agencies charged with enforcing the CWA—considered WOTUS to include everything from arroyos to prairie potholes to sloughs to mudflats, so long as the destruction or degradation thereof might ultimately affect traditionally navigable waters or interstate commerce (which could include recreation, sightseeing, or wildlife watching). It was a broad definition that gave the agencies latitude to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters,” as Congress mandated when creating the law in 1972.

Developers and property rights ideologues pushed back on this definition, saying it was too broad and therefore gave the feds too much power to curb pollution or restrict development. The issue ended up in the courts and, ultimately, to the U.S. Supreme Court.

The waters were muddied, so to speak, by the 2006 Supreme Court split decision on the Rapanos case. The late Justice Antonin Scalia wrote what would become the right-wing’s preferred definition of waters of the U.S. He argued that they should include only “relatively permanent, standing or continuously flowing bodies of water … described in ordinary parlance as streams[,] … oceans, rivers, [and] lakes.” Scalia’s definition emphatically excluded “ephemeral streams” and “dry arroyos in the middle of the desert.” Justice Anthony Kennedy disputed Scalia, saying instead the CWA should extend to any stream or body of water with a “significant nexus” to navigable waters, determined by a wetland’s or waterway’s status as an “integral part of the aquatic environment.”

Then, in 2023, in its ruling on the Sackett case, the SCOTUS majority deferred to Scalia’s Rapanos definition, writing: “… we conclude that the Rapanos plurality was correct: the CWA’s use of ‘waters’ encompasses ‘only those relatively permanent, standing or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams oceans, rivers and lakes.’”

It’s up to the relevant agencies to translate these rulings into actual rules, often adding their own ideological twists. The W. Bush, Obama, and Trump I administrations issued their own post-Rapanos definitions of WOTUS, Biden weighed in post-Sackett, now Trump II is submitting its own set of industry-friendly, deregulatory definitions.

The EPA’s proposed definition of ‘‘waters of the United States’’ would include:

(1) traditional navigable waters and the territorial seas; (2) most impoundments of ‘waters of the United States;’’ (3) relatively permanent tributaries of traditional navigable waters, the territorial seas, and impoundments; (4) wetlands adjacent (i.e., having a continuous surface connection) to traditional navigable waters, impoundments, and tributaries; and (5) lakes and ponds that are relatively permanent and have a continuous surface connection to a traditional navigable water, the territorial seas, or a tributary.

“Relatively permanent,” under the new rule, would mean

… ’standing or continuously flowing bodies of surface water that are standing or continuously flowing year-round or at least during the wet season.’’ Consistent with the Sackett decision, ephemeral waters (i.e., those with surface water flowing or standing only in direct response to precipitation (e.g. rain or snow fall) are not jurisdictional because they are not relatively permanent.

And then there’s this weird and vague, yet critical, term, “wet season,” which the rule defines as:

… is intended to include extended periods of predictable, continuous surface hydrology occurring in the same geographic feature year after year in response to the wet season, such as when average monthly precipitation exceeds average monthly evapotranspiration.

Sometimes you have to wonder whether the bureaucrats who come up with these things have ever even been to the Western U.S., particularly the arid Southwest.

The “relatively permanent” requirement clearly excludes thousands of arroyos, ephemeral streams, washes, gullies, and even rios and rivers — from the Santa Cruz to the Rillito to the Santa Fe to the Puerco and the Dirty Devil — from CWA jurisdiction. Indeed, it leaves huge swaths of the Southwest without Clean Water Act protections, and at the mercy of respective states or counties. A 2008 EPA study estimates that ephemeral and intermittent streams make up 59% of all of the waterways in the U.S. (excluding Alaska) and over 81% in the arid and semi-arid Southwest (AZ, NM, UT, CO, CA).

Source: U.S. EPA.

The ecological benefits of ephemeral streams are obvious to any Western wanderer who happens to venture down a seemingly dry and barren arroyo bed, where they may find cool air, the smell of water even on the hottest day, tiny tracks of animals seeking sanctuary from the sun, the lascivous bloom of a datura, and cottonwoods and even willows miles and miles away from any “relatively permanent” water source. And if that’s not enough, then consider that peer-reviewed research has found that these same ephemeral streams are major contributors to the water quantity and quality of the entire river drainage network of which they are a part.

A 2024 study by Craig Brinkerhoff et al concludes: “This ephemeral influence directly implicates downstream water quality standards: Excluding ephemeral streams from coverage under the CWA would substantially narrow the extent of federal authority to regulate water quality in the United States.”

While the administration was looking to provide “clarity,” the “wet season” provision does exactly the opposite, especially when one tries to apply it to the desert Southwest. If southern Arizona has a wet season, wouldn’t it be the days and weeks of the late summer monsoon? Many arroyos do run continuously during a good monsoon season, even if it is only for two or three weeks. So would that put them back under CWA jurisdiction?

How these proposed changes would play out on the ground is a bit of a puzzle — especially given the “wet season” ambiguity. But what is clear is that developers of big housing projects in the desert outside Phoenix or Las Vegas or Tucson, for example, would be allowed to fill in or build roads through arroyos and washes without obtaining a federal CWA permit from the Army Corps of Engineers. That would leave it to the state and county to implement their own, similar, permitting systems if they chose to do so.

As one might expect, the energy industry, developers, ranchers, and farmers generally support the changes, since it will eliminate some of the red tape that tangles up and delays projects.

“For U.S. oil and natural gas operators, this is a game-changer,” wrote the head of a Texas petroleum industry group in the Odessa American. “Picture the Permian Basin or Bakken Formation: vast swaths dotted with intermittent draws and playas that previous rules treated like sacred rivers, triggering Section 404 permits under the U.S. Army Corps that could drag on for years and cost millions in mitigation. Now, with ephemeral features sidelined and groundwater off-limits, operators can overcome those hurdles for well pads, access roads, and seismic surveys.”

If you live in the West, you probably live near at least one of the ephemeral streams that would lose federal protections under these new definitions. You might want to go walk up it sometime soon before it goes away.

In the meantime, you have until Jan. 5 to send your comments, identified by Docket ID No. EPA–HQ– OW–2025–0322, by any of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov/ (our preferred method). Follow the online instructions for submitting comments.

• Email: OW-Docket@epa.gov. Include Docket ID No. EPA–HQ–OW– 2025–0322 in the subject line of the message.

• Mail: U.S. Environmental Protection Agency, EPA Docket Center, Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.

Read more about the Clean Water Act, WOTUS, and the value of ephemeral waterways here (but remember, you gotta become a paid subscriber to bust through the paywall!)

🌵 Public Lands 🌲

Scene from a huge coal mine in the Powder River Basin. Jonathan P. Thompson photo.

Congressional Republicans have apparently decided that the best way to turn over public lands to the extractive industries is to do away with the plans guiding management of those lands. Earlier this year, Congress revoked three Bureau of Land Management resource management plans in Montana, North Dakota, and Alaska. Now, they’ve done the same for the RMP for the BLM’s Buffalo Field Office in Wyoming, which covers a good portion of the coal-rich Powder River Basin.

These mark the first times ever that the Congressional Review Act, which is intended to give Congress the power to review and possibly revoke recently implemented administrative rules, has been used in this manner. That’s in part because RMPs have not been considered “rules” in the past, meaning they are not subject to congressional review.

Resource Management Plans provide a framework for managing large swaths of land and authorize the BLM to permit mining, drilling, grazing, and other activities. They endeavor to balance the agency’s multiple-use mandate with environmental protections, guiding resource extraction and development away from sensitive areas and toward more appropriate ones, for example. They can take years to develop, and incorporate science, legal considerations, court orders, tribal consultation, and input from local officials and the general public.

And then, with just a few hours of debate and no opportunity for public input, Congress can toss the whole thing into the can.

In this case, the main target was a provision of the Biden-era RMP that halted new coal leasing on that swath of public land. While the moratorium was celebrated by environmentalists and panned by fossil fuel lovers when it was implemented late last year, it was largely symbolic, since existing leases contain enough coal to meet demand at least until 2040. So revoking the ban similarly won’t lead to any new mining anytime soon, nor are resulting lease sales likely to fetch much industry interest or acceptable bids.

But in their haste to scrap the ban, Congress also may have taken away the BLM’s power to issue new leases altogether — not just for coal, but for oil and gas drilling, grazing, or any other use. And not just for the Buffalo Field Office, either. This is a bit wonky, but basically it goes like this:

• By applying the CRA to RMPs, Congress is saying that RMPs are “rules.”

• According to the CRA, rules must be submitted to Congress before they can take effect.

• No RMP that has been implemented since 1996 has been submitted to Congress.

• Therefore, no post-1996 RMP has legally taken effect, making it invalid.

• The Federal Land Policy Management Act says the BLM can only issue permits, leases, rights of way, and other authorizations “in accordance with” a valid land use plan, or RMP.

• Therefore all permits, leases, ROWs, and other authorizations issued under post-1996 RMPs — including over 5,000 oil and gas leases, and hundreds more coming up for auction in the near future — are invalid.

This summer, 31 law professors and public land experts called on Congress to refrain from using the CRA to revoke RMPs. “The resulting uncertainty could trigger an endless cycle of litigation,” they wrote, “effectively freezing the ability of the BLM and other agencies to manage public lands for years, if not decades to come.”

Just last week, a group of conservation organization legal analysts expanded on the potential for chaos, and called on the BLM to pause new leasing and address the “potential legal deficiencies” of oil and gas leases covering some 4 million acres that were issued under now potentially invalid RMPs. The agency should not issue drilling permits for those leases, the analysts wrote, and it should consider canceling the leases.

Somehow, I don’t think the BLM under the current administration is going to follow that suggestion. Given its track record, it seems more likely that the agency will see the sudden lack of valid RMPs as an open gate through which it can ferry its pro-extractive agenda. This one is almost sure to end up in court.

🦫 Wildlife Watch 🦅

The Trump administration is proposing new regulations that would dial back Endangered Species Act protections and weaken the landmark law to “strengthen American energy independence,” according to an Interior Department news release.

The new rules would:

• Make it more difficult for the U.S. Fish & Wildlife Service to designate critical habitat in areas that are not currently occupied by an endangered species — likely because they were extirpated from the area — but that are essential for the conservation of that species. This would make recovering an endangered species that much more difficult.

• Remove a rule that extends ESA protections to species that are listed as “threatened,” which is one step away from “endangered.” This would potentially remove protections for species such as the marbled murrelet, vernal pool fairy shrimp, western snowy plover, Gunnison sage grouse, northern sea otter, and many others.

• Direct agencies to give economic impacts greater weight when deciding whether to extend ESA protections to a species. This could have potentially pushed the feds to, say, back off on listing the Tiehm’s buckwheat under the ESA, because doing so would potentially restrict or nix a proposed lithium mine in its only known habitat.

“This plan hacks apart the Endangered Species Act and creates a blueprint for the extinction for some of America’s most beloved wildlife,” said Stephanie Kurose, deputy director of government affairs at the Center for Biological Diversity, in a written statement.

📸 Parting Shot 🎞️

Raven and the red, white, and blue. Digital Painting by Jonathan P. Thompson.

And, finally, the Land Desk readers have spoken, and they have chosen El Burro Blanco as the name for the new Land Desk dispatch-mobile, with Hank coming in a distant second.

Moab seeks bigger crowds?