By Dr. Robert Thorson
Drain the swamp. This is one of Donald Trump’s favorite expressions. Earlier this year, on Feb. 28, he issued an executive order to drain the metaphorical swamp of federal regulations that protect the actual swamps of our national landscapes. I agree that the regulatory swamps (so-called) need draining. I disagree that the actual ones do.
To carry out his executive order, his underlings proposed a change in the official definition of “waters of the United States.'” You can read it by googling EPA-HQ-OW-2017-0203.
When I read it, I became stunned by the morass of unscientific legalese. In a state of numbness, I envisioned thousands of federal bureaucrats mandating 10,000 civil servants to spend 100,000 salaried hours getting nowhere with this odious text. If you dare, this text is open for public comments through Aug. 28.
Let’s ditch the word “swamp” as a derogatory term.
As our nation developed and spread westward, wetlands were considered bad things: useless patches of land; areas of pestilence; and the hiding places of outlaws, Confederates and fugitive tribes. Converting them to productive uses was embedded in the launch of the U.S. Army Corps of Engineers in the late 18th century. Over time, and in vernacular language, “swamp” became a term for any wetland, including marshes, bogs, fens, wet meadows and mudflats.
The draining and filling of wetlands was a historic mistake. Since the 1970s, ecological, engineering and toxicological research has demonstrated their ecosystem services, which had not previously been part of traditional land-use analysis. They were habitats, pollution filters, sediment traps, open spaces, refuges, flood-control devices and opportunities for education. Realizing that the streams and rivers of our cities, parks and rural landscapes were being kept clean and enhanced by upstream wetlands, the United States did an about-face and began protecting wetlands with regulations at all levels. Saving them from so-called development was associated with the launch of the Environmental Protection Agency.
Revisiting the “waters of the United States” rule constitutes political gerrymandering of America’s natural waters. Environmental Protection Agency Administrator Scott Pruitt and Army Corps of Engineers Deputy Assistant Secretary Douglas Lamont are now working together to define wetlands politically, rather than scientifically: “Science does not provide bright-line boundaries with respect to where ‘water ends,'” their proposal says. I couldn’t disagree more. Water ends when the easily defined and detected molecules are no longer there.
Their plan is to rescind the definition of “waters of the United States” before redefining it in a second step. This will create an interlude of uncertain duration, during which many surface waters will be exempt from regulatory authority by the Clean Water Act of 1972.
They also seek “to preserve the states’ primary responsibility and right to prevent, reduce and eliminate pollution,” thereby scaling back federal authority. This is patently absurd for rivers that share state boundaries and for the majority of rivers that flow across them.
The regulatory miasma involving wetlands results from society being fundamentally unscientific. Precise technical terms eliminate the wiggle room that gives attorneys and regulators the opportunities for more talk than action. For example, on three separate occasions (1985, 2001 and 2006), the U.S. Supreme Court has weighed in on the “waters of the United States” definition without getting it right. Water isn’t liquid, but a discrete chemical compound that exists as a solid, liquid and vapor. Water is present in every ounce of dry soil and breath of air.
In the last Supreme Court case, Rampano v. United States, “waters of the United States” was logically extended to wetlands with a “continuous surface connection” or a “significant nexus” to standing and flowing surface water. This earth-friendly decision resulted in an excellent ruling published on June 29, 2015, that is now up for hostile review by Pruitt and Lamont.
Please protect our nation’s wetlands by writing against the rule change.