The Environmental Protection Agency and Army Corps of Engineers’ proposal to undo the Clean Water Rule has been published in the Federal Register, meaning that the plan to review and redefine an Obama-era water pollution rule is officially public.
The proposal is a two-step effort aimed at undoing the Clean Water Rule, which was finalized in 2015 and sought to clarify the legal jurisdiction for the federal government under the Clean Water Act. And while publishing the proposal is merely the first step in rolling back the Clean Water Rule, environmental groups fear that it signals an escalation of the Trump administration’s larger effort to prioritize industry over the protection of America’s streams, rivers, and drinking water.
“The Trump administration’s proposal to allow more pollution into America’s drinking water sources is senseless,” John Rumpler, senior attorney for Environment America, said in a statement.
Under the Clean Water Act, the government has the ability to regulate pollution throughout the “waters of the United States,” which the 1972 law defined as being “navigable waters.” Certain waters clearly fall under the definition of navigable — rivers like the Mississippi, for instance — but other kinds of waters, like wetlands or Western rivers that flow for only part of the year, are less clear. The vagueness of the Clean Water Act lead to years of litigation, and courts had to decide largely on a case-by-case basis if a particular body of water qualified for protection under the Clean Water Act.
In 2015, the Obama administration, after years of consultation with scientists, environmental groups, industry, and other stakeholders, finalized the Clean Water Rule, which used a 2008 opinion from Supreme Court Justice Anthony Kennedy defining the jurisdiction of the Clean Water Act as any body of water with a “significant nexus” to navigable waters. In doing so, the administration protected 2 million miles of streams, 20 million acres of wetlands, and the drinking water of 1 in 3 Americans that otherwise would not have been clearly covered by federal law.
The Clean Water Rule was widely criticized by both Republican lawmakers and industry, which argued the rule was a prime example of government overreach. In February, President Donald Trump signed an executive order directing the EPA to review and reconsider the rule; now, with the proposal published in the Federal Register, that effort can begin in earnest.
Step one of the EPA’s proposal basically undoes the Clean Water Rule, reverting the definition of “waters of the United States” back to pre-2015 regulations. The second part of the proposal then redefines “waters of the United States” consistent with a different 2008 Supreme Court Justice’s opinion — that of the late Antonin Scalia.
Scalia’s definition of “waters of the United States” is much narrower than Kennedy’s, arguing that bodies covered by the Clean Water Act need to be both relatively permanent and continuously connected — thus, seasonal streams and wetlands would not qualify for protection. If the Trump administration succeeded in promulgating a rule based on Scalia’s definition, various water law experts agree that it would constitute a massive reduction in the ability of the federal government to protect vulnerable bodies of water from pollution.
The success of such a rule, however, is far from certain. First, the rule would face significant hurdles in the courts, as lower appeals courts have never upheld Scalia’s test for navigable waters on its own; they have all either used Kennedy’s test, or Kennedy and Scalia’s test together. And second, the rule would need to go through a public comment period, offering environmental, public health, and recreational groups — those that most strongly supported the Obama administration’s Clean Water Rule — a chance to voice their opposition to a definition consistent with Scalia’s test.
To avoid public and legal scrutiny over their revision of the rule, however, the Trump administration might get some help from Congress. The House is currently considering a “minibus” spending bill, and a provision in that bill would allow the EPA to withdraw the Clean Water Rule “without regard to any provision of statute or regulation that establishes a requirement for such withdrawal.” That would mean that the EPA could withdraw the rule without following the Administrative Procedures Act, which requires the agency to both have a period for public comment and defend their reasoning for withdrawing the rule as being neither arbitrary nor capricious. During the original public comment period for the Clean Water Rule, the EPA received more than a million comments, 87 percent of which were in support of the rule.
That’s not surprising. Americans generally care deeply about clean water and water protections, even more so than clean air according to one Gallup poll. And Americans tend to care even more about water when it comes to drinking water — more so than they care about the pollution of rivers and lakes, toxic waste, or climate change.
The Trump administration has pledged to adhere to an environmental policy that protects water for the American public. In his first speech to Congress, Trump said that his administration would “work very, very hard on clean air and clean water.” In a hearing before Congress, EPA Administrator Scott Pruitt echoed that sentiment, promising to focus the EPA on a core mission of protecting clean air and water.
But for most Americans, the water they drink is already far from clean. A Natural Resources Defense Council report published earlier this year found that almost 77 million Americans — nearly 1 in 4 — drink water that is either unsafe or not properly monitored for contaminants. In Flint, Michigan, residents still cannot drink tap water more than three years after the Michigan state government ordered the city to switch sources of drinking water, a decision that caused the city’s water supply to become contaminated with lead.
Even in places that clearly fall under the jurisdiction of the Clean Water Act, holding industry responsible for pollution is an uphill battle. In Tennessee, for instance, environmental groups have argued for years that the Tennessee Valley Authority has violated the Clean Water Act by allowing coal ash pollutants to leach into groundwater near the Cumberland River and, eventually, into the river itself. The company’s own internal documents recorded coal ash spills into the river, as well as topography that would allow coal ash stored in waste ponds to leech into groundwater. Still, a conviction is far from certain.
In North Carolina, where state government has worked to loosen regulations — including water pollution regulations — seen as unfriendly to industry, a similar saga is playing out. Residents near Duke Energy coal ash ponds have fought for years to hold the company responsible for polluting their drinking water by allowing coal ash toxins to leech into groundwater, as well as nearby rivers and streams; the company has fought those allegations for years, largely with support from the state government.
Places like North Carolina offer a glimpse into a world where government caters to the desires of industry over the safety of public drinking water. But the Trump administration doesn’t even need to look as far as North Carolina for a blueprint in favoring industry over clean water; in tapping Pruitt to lead the rollback of the Clean Water Rule, Trump chose a man whose career is rife with examples of deferring to industry. As Oklahoma’s attorney general, Pruitt chose to delay anti-pollution efforts aimed at cleaning up water quality in the Illinois River, despite clear evidence that the river and watershed suffered from agriculture-related pollution.
And the Clean Water Rule is not the Trump administration’s only example of favoring industry preference over clean water protections. Earlier this week, the Trump administration officially filed its intention to repeal an Obama-era fracking rule aimed at preventing operations on federal lands from polluting water supplies.
The administration, meanwhile, has proposed no new rules or policies that would protect clean water for the American public, despite Trump’s promise to Congress.