The president's scheme is unlawful and reckless—and we're doing everything we can to stop it.
I thought I’d seen it all. I began my career in environmental policy in 1991. Since then I’ve worked for the U.S. Environmental Protection Agency, state government, and a nonprofit citizen advocacy group. I’ve seen hundreds of federal regulatory actions over the years. But until this summer, I’d never seen anything as unlawful and reckless as the Trump administration’s scheme to repeal the Clean Water Rule.
NRDC filed detailed comments opposing that plan today, and we gave the EPA and the Army Corps of Engineers (which jointly proposed the repeal) a very large piece of our mind. You can see our comments here, but here’s the Cliffs Notes version:
Why Do We Need a Clean Water Rule?
For more than a decade, there was confusion—and extensive legal debate—over which bodies of water were protected under the landmark Clean Water Act. That mess most commonly affected small streams, ponds, and wetlands, especially ones that occasionally dried up. In 2015, the EPA and the Army Corps adopted the Clean Water Rule to clarify legal protection for tens of millions of acres of wetlands and thousands of streams across the United States.
These water bodies serve critical functions. Notably, more than 117 million Americans receive drinking water from public systems that draw supply from headwater, seasonal, or rain-dependent streams. Wetlands cover roughly 110 million acres in the continental United States, filtering pollution from contaminated runoff and replenishing groundwater. An acre of wetlands can also store upwards of one million gallons of floodwater (a recent study even estimated that wetlands prevented $625 million in property damage from flooding caused by Hurricane Sandy in 2012). Wetlands and small streams also provide essential fish and wildlife habitat, supporting a robust outdoor recreation economy.
It’s a big deal for federal law to protect a body of water. It means all sorts of pollution prevention, control, and cleanup programs kick in. Wastewater dischargers and sewage plants can’t dump into such waters without pollution-limiting permits; facilities storing a lot of oil near covered waters must develop oil spill prevention and response protocols; and states must plan and prepare for the cleanup of protected waters that don’t meet state water-quality standards. Industrial and commercial developers ordinarily need approval before filling in waters like wetlands and sometimes must mitigate their impact by creating, preserving, or enhancing other water resources; the act also prohibits the discharge of “any radiological, chemical, or biological warfare agent, any high-level radioactive waste, or any medical waste” into covered waters. And entities disposing of sewage sludge that could pollute such waters must abide by pollution control standards.
After the Clean Water Rule, American families could be more confident that the creeks, ponds, and marshes they use for swimming and fishing—and depend on for drinking water—would not be recklessly polluted and would be cleaned up if they became contaminated.
Why Is the Trump Administration Repealing the Rule?
Darned if I know.
Since there was some opposition to the rule when it was developed, you might expect its repeal to be based on arguments that it is too stringent. Because the Clean Water Rule made clear that polluters had to take responsibility for their discharges, industry lobby groups derided the rule and sued the EPA and the Corps for adopting it. They claimed that it protected too many water bodies. Before he became administrator of the EPA and signed the proposal to repeal the Clean Water Rule, Scott Pruitt—then Oklahoma’s attorney general—was one of the litigants suing over it.
But the agencies do not claim that the Clean Water Rule represents bad policy that they need to repeal. And they don’t claim that the regulations they’ll adopt in its place are preferable. I can see why. It would be hard to attack the Clean Water Rule’s protections, because the rule resulted from an extensive public-engagement process. It’s the product of a state-of-the-art review of the scientific literature to establish which waters served important functions, as well as a careful assessment of the Clean Water Act’s objectives and the responsibilities it places on the federal government. Likewise, the agencies can’t justify their actions on the basis of improved clarity or better environmental protection, because the proposed repeal would return us to the previous state of confusion over what the act protects and would leave critical water bodies inadequately safeguarded.
Ultimately, the agencies’ proposed repeal has no rational basis. Really, truly, there’s no there there. And that’s what makes it so astonishing. The EPA and Army Corps make a halfhearted argument about addressing uncertainty related to the ongoing litigation, but their solution to that alleged problem is to increase public uncertainty. This transparently bogus reasoning makes the repeal illegal, as do the numerous other liberties the agencies took in the process (like when political staff at the EPA ordered career employees to make the repeal look less bad by questioning the value of protecting wetlands).
What’s Really Going On Here?
As I previously wrote, the administration intends to roll back safeguards in two steps. First, it’s doing this rulemaking to repeal the Clean Water Rule on a superfast timeline. (The comment period on the proposal, even counting the paltry 30-day extension the agencies grudgingly granted, was 62 days, compared with 207 days for the Clean Water Rule.)
Second, the agencies plan to invent a new, disastrous rule that would roll back clean water safeguards for wetlands and streams, in keeping with a February executive order President Trump signed.
In my opinion, this two-step scheme reflects that administration members fear three things. First, they’re worried that their new rule to radically roll back what the Clean Water Act protects will fail, so they don't want to tie their repeal―which they want to accomplish anyway, because it aligns with the wishes of their allies in various polluting industries―to that anchor. Second, they’re terrified that if they don’t get rid of the Clean Water Rule, clean water advocates like NRDC will successfully defend it in court, where litigation about its validity remains pending. So they are racing to repeal the rule before a court can independently review its basis in science and the law. And third, they are super scared that if the rule gets implemented, it will prove to be effective and not be the federal overreach that its opponents have claimed, thereby depriving the administration of its primary argument for getting rid of it.
What Comes Next?
Because the administration’s clean water rollback plan means that fewer streams, wetlands, and other waters would be protected by the Clean Water Act’s safeguards, it will lead to more pollution being dumped into the lakes and streams we rely on for drinking water or enjoy for fishing and swimming and will green-light the rampant destruction of wetlands that prevent dangerous flooding. If the Trump administration persists in its repeal of the Clean Water Rule later this fall or winter, you can expect lawsuits from public health and environmental advocates and their partners. And if the Trump administration carries out its promised assault on the Clean Water Act’s 45-year-old protections with a far weaker rule, we will call out its unlawfulness and fight that rollback in every forum.