Kansas officials cheer Trump action to rewrite clean water rules; environmental groups fear consequences

President Donald Trump signs the Waters of the United States (WOTUS) executive order, Tuesday, Feb. 28, 2017, in the Roosevelt Room in the White House in Washington, which directs the Environmental Protection Agency to withdraw the Waters of the United States (WOTUS) rule, which expands the number of waterways that are federally protected under the Clean Water Act. (AP Photo/Andrew Harnik)

? Members of the Kansas congressional delegation praised President Donald Trump this week for signing an executive order that could lead to repealing clean water regulations from the Obama administration.

A local environmental group, however, said Trump’s order could lead to degrading water quality in the Kansas River and other lakes and streams.

Republican U.S. Sens. Pat Roberts and Jerry Moran, along with U.S. Rep. Lynn Jenkins, a Republican whose district includes Lawrence, all issued statements praising the order that calls for a complete review, and possibly repeal, of the Obama-era Clean Water Rule, also known as the Waters of the United States, or WOTUS rule.

“The WOTUS rule has been a thorn in the sides of rural America for too long, and I’m thrilled President Trump has taken swift action to get rid of it,” Roberts said in a statement released Tuesday.

But Dawn Buehler, who heads the advocacy group Friends of the Kaw, said repealing the rule could have long-term consequences for the Kansas River and other local bodies of water.

“Here in Kansas we think it could have a significant effect on the Kaw,” she said.

The Kansas River is considered a “navigable” river, and so repealing the Clean Water Rule would not restrict the ability of EPA and the Corps of Engineers to regulate activity such as sand dredging or wastewater discharge directly into the river.

But Buehler said it could affect those agencies’ ability to regulate nearby wetlands or minor tributaries that eventually do flow into the river, even if they are only intermittent streams.

“When they do flow, they would carry pollutants to the Kansas River,” she said.

In 1972, during the Nixon administration, Congress enacted the Clean Water Act to protect water quality in public lakes, rivers and streams that are considered to be “waters of the United States.”

In order to protect major bodies of water, however, the Environmental Protection Agency has for decades extended its reach to include smaller upstream tributaries. The effect was that the EPA and the U.S. Army Corps of Engineers could require permits and impose restrictions on land use for property far away from any regulated lake or river if officials determined that the activity would have a negative impact on water quality downstream.

They also included such things as wetlands, lakes and streams located entirely within one state if they provided habitat to migratory birds.

In a series of cases in 2001 and 2006, the U.S. Supreme Court ruled that the EPA and the Corps of Engineers had overstepped their bounds in their enforcement of the Clean Water Act.

In the 2006 case, Justice Antonin Scalia, now deceased, said that in deciding whether to grant a permit, the Corps of Engineers “exercises the discretion of an enlightened despot, relying on such factors as ‘economics,’ ‘aesthetics,’ ‘recreation,’ and ‘in general, the needs and welfare of the people,'” factors that he said made it impossible for private landowners to know in advance what activities would be permissible.

The Obama administration’s rule was intended as a response to those decisions. Its aim was to define more precisely which waters would be eligible for regulation under the Clean Water Act.

But when the new rules were finalized in 2015, they sparked immediate protest, especially from the agriculture industry where farmers and ranchers complained that EPA was trying to extend its reach into such things as stock ponds and dried-up river beds that only flow intermittently.

“The rule would illegitimately add thousands of private bodies of water — from farm ditches to dry creek beds — to the definition of what the government can regulate,” Jenkins said in a statement posted Tuesday on Facebook. “The EPA was not authorized to make such a wide-ranging power grab and these types of wide policy changes should only be considered by Congress through the legislative process, not issued by agency mandates.”

Kansas Attorney General Derek Schmidt was among several state attorneys general who filed suit in federal court challenging the rule.

Schmidt was in Washington Tuesday with several other state attorneys general who met with the president before the order was signed.

“The President’s Executive Order is the first step in repealing this overreaching regulation,” Schmidt said in a statement released by his office. “This rule was designed to expand improperly the federal government’s regulation of private property far beyond what was authorized by Congress.”

The Sixth U.S. Circuit Court of Appeals put the rule on hold pending the outcome of the case. But the U.S. Supreme Court is now being asked to decide which federal court has jurisdiction in the case.

Legal experts have said it could actually take years for the Trump administration to repeal the rule. Still, opponents of the rule, including Moran, said they were happy that Trump has started the process.

“The onerous WOTUS rule misses the mark by imposing excessive burdens on landowners, threatening to harm the economy, and costing us jobs,” Moran said in a statement Tuesday. “We all share the goal of promoting clean and safe drinking water for our citizens, but there are better ways to protect our waters than this federal regulation.”