Recently, the Trump administration stopped taking public comment (after an absurdly short period of time) on a proposed regulation that would dramatically weaken the Clean Water Act. The Act is the country’s principal law protecting lakes, rivers, and other water bodies from destruction and pollution.
The Environmental Protection Agency and the Army Corps of Engineers want to exclude at least half of the nation’s wetlands, along with millions of miles of streams, from protection under the Clean Water Act. Consequently, the administration would disable numerous safeguards in the law, including programs that prevent oil spills, limit the discharge of toxic pollutants, require the cleanup of waters that are too polluted for fishing or swimming, and prevent unlimited development that buries streams, marshes, and other waters.
It’d take a lot of pages to list the problems with this proposal, as NRDC’s detailed comments reveal. It’d also be hard to list all of the opponents of the scheme, as demands to scrap the proposal have flooded in from 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. More than 525,000 individual commenters opposed to the plan also weighed in—an amazing number considering that the agencies only allowed two months for public comment.
Rather than try to be comprehensive, this post describes the major themes that emerged in the numerous comments opposed to the scheme and highlights some notable opponents of the agencies’ plan.
What don’t people like about the Dirty Water Rule proposal?
Pretty much everything.
First, the administration has denied people critical information about the consequences that will flow from their rollback. The agencies acknowledge their proposal will increase the risks of flooding, drinking water contamination, and pollution of water bodies where people swim and fish, but astonishingly refuse to identify the extent or severity of those harms. A regulation plagued by that kind of overwhelming ignorance is so irrational that it’s illegal.
Second, the agencies toss aside the overwhelming scientific evidence that the kinds of waters they propose to exclude—tributary streams, wetlands and ponds located in tributaries’ floodplains, and high-functioning waters outside of floodplains—directly influence the condition of waterways on which we all depend. Although disregarding science is an all-too-familiar habit of this administration, we can’t become accustomed to it; science-reliant agencies like EPA lose their way if they make policy that contradicts the clear lessons from the scientific evidence.
Third, the agencies ignore how their proposal will harm the economy. They do not assess the plan’s nationwide impact on drinking water treatment costs, flooding-related property damages, the outdoor recreational economy, commercial producers of water-based goods, or ecological restoration businesses. And they systematically devalue the benefits from the law, particularly benefits associated with protecting wetlands.
Fourth, the administration justifies the scheme by arguing that the Clean Water Act was designed to balance state and federal authority and by claiming that many states will step up to protect water bodies that the federal government leaves behind, but this denies reality. It defies the entire history of the Act, which Congress adopted because states had failed to adequately protect water bodies and which is carefully constructed so that states largely implement the law subject to federal oversight. This approach also ignores that—even if one were to believe that many states are eager to take on new responsibilities—the legal, logistical, political, and financial hurdles to doing so are substantial.
Fifth, although the agencies claim that their proposal would improve the clarity of the federal rules, that’s false and wouldn’t be a reason to throw the entire framework of the Clean Water Act away even if it wasn’t. The proposal bases its new exclusions on vague concepts that will be difficult to implement and that lack any reasonable linkage to the law’s water quality purpose.
Who doesn’t like the Dirty Water Rule proposal?
Pretty much everybody.
Because they’ve proposed a rule that would leave America’s water dirtier, its people more at risk, and its economy weaker, the agencies have brought a ton of criticism on themselves. Below is a sampling of some of the comments.
The National Congress of American Indians writes that the proposal would contravene the Act’s “recognition of the interconnectivity of water resources by narrowing the scope of protected waters,” and “would unduly affect tribal nations and raise jurisdictional issues related to fulfillment of the federal trust responsibility, treaty compliance, and violations of reserved rights.” Dozens of individual tribal nations, located in widely different areas (such as the Houlton Band of Maliseet Indians in Maine, the Cherokee Nation in Oklahoma, and the 20 member tribes of the Northwest Indian Fisheries Commission), also raised important concerns.
National associations representing state floodplain managers and wetland managers objected to these rollbacks. For instance, the Association of State Floodplain Managers oppose the proposal because “it represents a large-scale deregulation of wetlands and streams that have a direct role in reducing flood damage and protecting the natural and beneficial functions of floodplains.”
Meanwhile, the Attorneys General of 14 states plus the District of Columbia wrote that the proposal “is inconsistent with the Clean Water Act, fails to consider important issues, lacks factual and legal support, and ignores the Agencies’ previous findings and conclusions without a reasoned basis.”
The agencies also received:
- Opposition from Colorado’s Governor and Attorney General and North Carolina’s Department of Environmental Quality and Attorney General.
- Wildlife concerns expressed by fish and game authorities in Arkansas, the Atlantic Flyway Council (which manages migratory birds and includes 17 states, Puerto Rico, the Virgin Islands, and six Canadian provinces), the Nebraska Game and Parks Commission, the New Mexico Department of Game and Fish, the North Carolina Wildlife Resources Commission, and natural resource agencies participating in the Upper Mississippi and Great Lakes Joint Venture (which is a partnership with federal agencies and non-governmental organizations for bird conservation) from Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Nebraska, Ohio, and Wisconsin.
- Reactions ranging from deep concern to strong opposition from the Division of Water Quality in Utah, and from environmental agencies in Washington, D.C., Massachusetts, Michigan, New Mexico, Minnesota, Pennsylvania, Virginia, Washington, Wisconsin, and Maryland. Maryland reported that the state performed an initial analysis of the potential harms from the proposal’s rollback of wetlands protections and that analysis “indicates that up to an additional 2.3 million pounds of nitrogen per year and up to an additional 57,000 pounds of phosphorus per year could enter the Chesapeake Bay,” such that the “cost to Marylanders off-setting this additional pollution over 20 years could be over $1 billion.”
Businesses and Recreational Users Dependent on Clean Water Act Protections
Although the agencies tout their scheme for sparing polluters the costs of complying with the Clean Water Act, the rollbacks will hurt numerous businesses that rely on the safeguards that the Act provides. Many businesses and participants in the outdoor economy enhanced by clean water weighed in to urge the agencies to abandon their proposal.
For starters, the Pacific Coast Federation of Fishermen’s Associations and the Institute for Fisheries Resources, which represent family commercial fishing businesses, wrote to highlight “some of the adverse implications of the Proposed Rule on the economically valuable salmon runs of the U. S. west coast….”
Several businesses leading fly fishing trips or providing equipment for fly fishers also wrote in opposition. The owner of Montana Fishing Outfitters, for instance, wrote:
Clean water is good for business. Obviously, its good for my business. No client has ever asked me to take them fishing someplace where the water was polluted. But Montana has proven that clean water is good for all businesses. People come to Montana to visit or to live because of the quality of life we enjoy here. Part of that quality of life is about clean water the rivers and streams that flow through our communities.
Similarly, river guides and paddling outfitters urged the agencies not to finalize their scheme. Those ranged from people leading trips on the Lower Mississippi River and waters that feed it to the owners of a business making portable rafts.
The outdoor apparel company Patagonia stressed how significant these kinds of businesses are to the national economy, noting: “The Outdoor Recreation Economy employed 7.6 million people nation-wide and generated $887 billion in revenue in 2017. That year the industry produced $65.3 billion in federal tax revenue and $59.2 billion in state and local taxes.” These concerns were echoed by outdoor recreational enthusiasts represented by the Outdoor Alliance, American Whitewater, the American Canoe Association, and Surfrider Foundation.
With my personal favorite reason to love clean water, 59 craft breweries across the country wrote to oppose the proposal. They stressed that they “need reliable sources of clean water to consistently produce the great beer that is key to our success,” and that, partially thanks to clean water, “the craft brewing industry contributes about $76.2 billion to the U.S. economy each year, along with more than 500,000 jobs.”
Finally, because complying with the Clean Water Act sometimes requires developers and other dischargers to offset the harm they are causing by ensuring that wetlands or other waters are created or preserved elsewhere, companies in the business of providing those ecological mitigation services are also troubled by the vagueness of the proposal and the agencies’ failure to adequately account for their contribution to the national economy.
Boy oh boy, scientists really don’t like it when people make decisions that ignore the obvious lessons from the scientific evidence and they get downright testy if policy-makers misrepresent the scientific record. Because the Trump administration did both of these things, a whole bunch of scientists tore into the proposed rule.
For example, 12 scientific societies, representing more than 200,000 scientists across a broad spectrum of disciplines, wrote:
The proposed [Rule] will make it impossible to achieve the objectives of the CWA because it excludes numerous waters and wetlands that directly affect the chemical, physical, and biological integrity of primary waters. Furthermore, many of the definitions and terms in the proposed Rule lack clarity and/or are not based in science. Likewise, many of the criteria for jurisdiction are not based in science and fail to meet the stated goal of clarity, predictability and consistency.
Under this proposed Rule, the CWA’s primary goal of maintaining and restoring the chemical, physical, and biological integrity of downstream traditional navigable waters would not be possible. In conclusion, we wish to state in the strongest possible terms that the proposed Rule should be rejected.
Similarly, more than 130 freshwater scientists wrote, “[b]ecause we support science-based environmental policy, we write in unequivocal opposition” to the proposal.
And more than a dozen scientists who served as independent reviewers for the scientific record supporting the regulations that the agencies want to replace said that the proposal’s references to science amount to efforts to “cherry-pick” prior work, “misinterpreting and taking information out of context.”
The American Society of Landscape Architects likewise said that any “rule that does not rely upon accepted scientific facts, undermines the basic tenets of the CWA, and creates more confusion about the oversight of our waterways is certainly not the answer to creating an enforceable framework that will create and maintain safe, healthy bodies of water.”
The List Goes On and On…
The commenters listed above are just the beginning. More comments are still being uploaded to the public docket every day, and there are a host of other folks who care about clean water and don’t support the administration’s plan to weaken protections for it. That includes:
- Public health advocates like the Alliance of Nurses for Healthy Environments, the American Public Health Association, the Association of Public Health Laboratories, the Children’s Environmental Health Network, the National Environmental Health Association, and Trust for America’s Health.
- City and county governments, which often have responsibility for providing drinking water to residents and therefore care deeply about source water protection. Comments came in from Ithaca, NY, New Orleans, Eagle County, CO, King County, WA, and several others.
- Farmers concerned about their water quality, including comments found here, here, here, and here.
- Environmental law professors, who observed that “key elements of the current proposed rule are inconsistent with fundamental principles of administrative law and reflect misunderstandings of the Clean Water Act and the Constitution.”
- Members of Congress, including leaders of crucial committees overseeing the Clean Water Act, as well as 77 members of the House of Representatives, who said the proposal “would burden all Americans, but would have especially devastating impacts on vulnerable communities—particularly rural and low-income communities and communities of color, whose members are already disproportionately harmed by unsound or unsafe environmental policies.”
- Organizations representing numerous different faith-based perspectives.
- And environmental/conservation organizations too numerous to count.