On January 23, the Environmental Protection Agency and the Army Corps of Engineers unveiled a regulation that dramatically restricts what kinds of water bodies the Clean Water Act protects. The rule excludes rain-dependent streams and countless wetlands and ponds from a variety of pollution prevention, control, and cleanup requirements in the law. These exclusions make the law weaker than it has been in several decades.
With this rollback, the Trump administration has made it easier for these waters to be polluted or destroyed. That’s important because the rule targets streams, wetlands, lakes and other waters that filter pollution, serve as nurseries for fish, act as natural flood barriers, and feed tens of millions of people’s drinking water supplies. It’s also important because these waters are ubiquitous. For instance, there are more than two million miles of rain-dependent streams in the country, which is likely a major underestimate, and an EPA preliminary analysis of the proposed rule indicated it could exclude approximately 51 percent of the roughly 110 million acres of wetlands in the continental United States.
There are dozens of problems with this rule, but I will highlight some of the worst flaws and then focus on the one that makes me maddest of all.
First, stripping clean water protections now is just dumb. The country hasn’t come close to meeting the Act’s pollution control goals of eliminating pollutant discharges and making waters nationwide swimmable and fishable. Instead, 53% of assessed rivers and streams don’t meet state water quality standards. Similarly, 71% of assessed lakes, reservoirs, and ponds don’t meet standards, and 80% of assessed bays and estuaries fall short. In other words, we should be strengthening protections, not weakening them.
Second, the rule wholly ignores the robust scientific evidence demonstrating that these streams and wetlands are crucial to the health of downstream water bodies. Many scientists have told the agencies as much, as a recent blog post from the Union of Concerned Scientists discusses. Notably, EPA’s own science advisors – many of whom have been hand-picked by Trump’s EPA heads – reviewed the proposed rule and warned that it flunks basic science. The Science Advisory Board’s latest draft commentary (which is expected to be finalized soon) says, “the SAB finds that the proposed Rule lacks a scientific justification, while potentially introducing new risks to human and environmental health.”
Third, the rule is illegal. It relies on a theory that no court has accepted and that five Supreme Court justices rejected. Moreover, the agencies failed to do the legally-required work of justifying this radical change in policy in light of what it would do to public health and safety, to the environment, and the economy that depends on water resources.
Fourth, the rule relies on hopelessly vague terminology that will make it impossible to effectively implement in the real world. The most egregious example of this is that the rule excludes water bodies unless they exhibit certain flow conditions in a “typical year,” but then provides a gibberish definition of that term. I swear I’m not making this up – the agencies say that the linchpin term “typical year” in the rule “need not be based on a calendar year” and need not be determined using any particular data or methodology. Instead, the rule says that people are supposed to try to evaluate “the characteristics of a waterbody at times that are not too wet and not too dry.” How will someone know whether this Goldilocks condition is met? Your guess is as good as mine, especially since the agencies say that this assessment should be based on data from the prior 30-year period. But climate change is going to dramatically alter conditions such that water bodies’ prior wetness or dryness often will be an unreliable predictor of their future state.
Fifth, it's unpopular. Loads of state officials, tribal nations, water-reliant businesses, hunters and anglers, representatives of under-served communities, people of faith, scientists, wetland experts and mitigation professionals, and conservation groups, told the administration that the rule was bad news and urged the agencies not to adopt it.
All of that is bad enough and reason enough to have dropped this scheme months ago. But that’s not even the worst part. The worst part is that the administration says that they do not know how the condition of the nation’s water bodies will be affected by the rule, which ought to be the first and most important question to try to answer when considering a policy change.
The agencies claim to be incapable of estimating the extent of streams, wetlands, or other waters that will be affected by their rule. The administration even put out a “fact sheet” condemning the media and public for saying that the rule would put millions of acres of wetlands and thousands of miles of streams at risk. The agencies instead loudly proclaim their own ignorance, saying that the tools don’t exist to estimate the impact of the rule.
Because they say they can’t estimate the nationwide impacts on water bodies, the agencies also claim they can’t predict how many industrial facilities might escape pollution limits or the number of refineries or other oil plants that could avoid developing spill prevention and response plans. And they claim they have no idea how much increased pollution from the proposal will harm people drinking from more contaminated supplies, fishing or swimming in more polluted waters, or living in flood-prone areas where wetlands have been paved over.
And because of this failure, the administration also says it can’t meaningfully examine the full economic costs the rule would impose on society by making communities more vulnerable to flooding, increasing the costs of drinking water treatment, diminishing opportunities for and the quality of outdoor recreation, and more.
Holy mackerel, that’s bonkers.
The Trump administration wants us all to simply accept that they’re gutting decades-old legal protections for our waterways without any evidence those waters won’t be seriously damaged and with loads of reasons to expect otherwise. It shows contempt for people’s legitimate concerns about the waters on which they depend.
And, what’s worse, their claimed inability to assess the expected harms is bogus. There are national databases that show the extent of various water resources, reams of historic information that could help the agencies predict how water bodies would be impacted by regulatory changes, and scientific studies and models that could be used to assess the effects of polluting or destroying water bodies. While it’s true that the agencies do not have perfect information, they have the capacity to use existing tools to at least provide estimates of the range of possible impacts. I suspect they refused to do so because they’re afraid to share those estimates with the public and reveal that this rule would be a disaster.
But even if you take the administration at its word that this analysis is impossible, going forward with the rule without this information is ridiculous. If the administration truly is this ignorant of the effects of its rule, it lacks any reasonable basis for saying that it’s a good policy. If they were acting responsibly, the agencies should’ve taken the time they needed to actually analyze the impacts of it as well as other potential regulatory options. Instead, they did the most reckless thing they could’ve done -- rush to put out a rule while claiming ignorance of its consequences for people’s health, public safety, and the environment.