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Vermont Supports EPA In Complex Battle Over Which Water Bodies Feds Can Regulate

Peter Hirschfeld
VPR feil
An aerial view of the Missiquoi River in Swanton from September 2016. The debate over the Waters of The United States Rule boils down to just how far upstream the EPA should be allowed to regulate.

The U.S. Supreme Court recently decided it will continue to hear a controversial case about which water bodies the Environmental Protection Agency can regulate, even after President Trump asked them to hold off. Vermont is one of eight states that has filed to defend the EPA rule.  

The Waters of The United States Rule is an attempt to codify that even small rivulets or seasonal wetlands that feed into larger bodies of water should be regulated by the Clean Water Act.

The rule was challenged by a number of businesses and some states —including Oklahoma, under the leadership of then-attorney general Scott Pruitt. The suit charges that EPA rule extends the federal power too far.

Pat Parenteau of Vermont Law School says that a more conservative definition of which small tributaries fall under federal regulation could undermine the whole Clean Water Act: 

"[The definition] has to do with virtually everything: Lake Champlain, the Great Lakes programs, the spills of oil and hazardous materials into water — everything depends on the definition of Waters of the U. S.," says Parenteau. "So when you shrink that, you're shrinking the whole Clean Water Act program."

A debate over who regulates water

The debate over which water bodies fall under federal power has been going on more than a decade. The Waters of the U.S. rule was an attempt to finally codify the answer.

"The EPA did establish some pretty bright lines, for the first time ever, on how far federal jurisdiction extends," says Parenteau.

The rule was published in the Federal Register (PDF) in June 2015. 

Parenteau says the rule is based on sound EPA science looking at just how even the smallest tributaries ultimately feed into larger bodies of water.

"It's called the connectivity study. It was peer reviewed multiple times, it's based on sound hydrology and stream ecology. This rule wasn't invented out of whole cloth by a bunch of lawyers in Washington, it's a scientific test for what constitutes Waters of the U.S."

But instead of assuaging concerns, the rule has stirred up more lawsuits. Some of the plaintiffs argued the federal government should not be allowed to regulate how tiny creeks or seasonal wetlands on private land are handled.

Vermont disagrees. The attorney general's office has filed in support of the EPA rule.

"The EPA definition includes upstream sources that funnel into bigger rivers," says Ben Battles of the Vermont Attorney General's office. "Our view is that, in order to keep the rivers clean, you need to keep the tributaries clean."

A web of complex litigation

President Trump recently asked the courts to stay litigation after he requested that the EPA consider rescinding the rule entirely.

"The EPA’s so-called “Waters of the United States” rule is one of the worst examples of federal regulation, and it has truly run amok, and is one of the rules most strongly opposed by farmers, ranchers and agricultural workers all across our land," Trump said, in official White House remarks on Feb. 28, 2017. "With today’s executive order, I’m directing the EPA to take action, paving the way for the elimination of this very destructive and horrible rule."

But earlier this week, the Supreme Court decided to proceed and hear the case.

Before it even turns to considering the definition of the Waters of the U.S., the court will first rule on which court should have jurisdiction over this matter. The whole process could take many months.

Parenteau says if the rule were to be revoked or rolled back, western states would be most affected.

"All six New England states have pretty good, robust water quality programs by now," Parenteau says. "A lot of those programs do depend on federal funding, so that's a problem and question, and of course, Trump is also going after the funding. But we don't know how that's going to play out in Congress."

Kathleen Masterson as VPR's New England News Collaborative reporter. She covered energy, environment, infrastructure and labor issues for VPR and the collaborative. Kathleen came to Vermont having worked as a producer for NPR’s science desk and as a beat reporter covering agriculture and the environment.
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