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What's in Your Water? Flint and Beyond

The devastating lead contamination of the tap water in Flint, Michigan highlights potentially disastrous gaps in the provision of safe drinking water to all Americans—especially the most vulnerable.

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HB 542 & the Dealing of Pennsylvania's Environment (II)
Mark Szybist

Part I of this blog discussed recent DEP budget cuts and the Permit Decision Guarantee, the DEP’s 2012 policy to ensure that environmental permits are issued expeditiously.

Here, I’ll scrutinize the forced-approval and third-party review provisions of HB 542, and explain why the House of Representatives should vote against the bill.

“Deemed Approvals”

Under the forced-approval rider in HB 542, permit applications related to shale gas development would be “deemed approved” if the DEP did not approve or deny them on their merits within “an applicable time period for review.” 

The rider specifically mentions, and assigns review periods to, three types of permits: (1) permits to drill wells (45 or 60 days), (2) “general air quality permits” (30 days), which currently cover air pollution from most pipeline compressor stations and soon will cover well pads unless the Air Quality Permit Advisory Committee that HB 542 would create prevents this, and (3) erosion and sedimentation control permits (24 or 53 days), which authorize earth disturbance for well pads, pipelines, and other infrastructure.

Depending on how you read the “forced approval” provisions in HB 542 (the language is ambiguous), they could apply just to these three kinds of permits or to all permits for activities “related to unconventional oil and gas development” – from the treatment and storage of toxic gas well wastes to the filling of wetlands.

While it’s received less attention than HB 542’s third-party-review provisions, the “deemed approval” rider is more radical. Forced-approval would allow shale gas development activities to occur not based on whether they satisfied legal standards, but because a certain amount of time had passed since a company submitted its permit application. Unfortunately, when an application is “delayed” at the DEP, there’s a good chance it’s problematic – and that issuing a permit might endanger human health or the environment. Such applications are the last ones that should get automatic approval.

“Deemed approval” raises enforcement questions. What would happen, for instance, if the DEP determines afterward that an activity doesn’t meet legal standards? HB 542 says that deemed approvals do not “relieve a person who commences activity under [a deemed approval] from complying with each law pertaining to the activity…” But if the operator disagreed with the DEP’s assessment of legality, would the DEP have to file a lawsuit? (When an activity is formally permitted, the DEP can revoke the permit). This would consume scarce DEP resources - and face political headwinds, for projects already underway.

If an application poses a threat, some argue, the DEP could prevent forced-approval by denying the application. While that’s true, such denials could all be appealed (which would discourage more denials), and the DEP would likely be attacked as obstructionist and risk more budget cuts by the General Assembly.

One part of the forced approval rider does seem to make sense. Currently, if an application contains deficiencies, it no longer qualifies for Permit Decision Guarantee policy. Under HB 542, deficient applications would stay on the clock, with the review period “tolled” (i.e., temporarily stopped) while an applicant was correcting deficiencies. This would likely speed the review of deficient applications significantly. Why also have “deemed approvals,” then? The mechanism amounts to a bet that red-flagged gas development activities are more likely to be safe than to be dangerous. Pennsylvanians have much to lose from this bet, and nothing to gain.

Third-Party Review

HB 542’s third-party review provisions would allow parties with “delayed” permit applications to opt out of DEP review and instead have their applications “resolved” by third-party reviewers, whom they (the applicants) would choose. All DEP permits would be subject to third-party review, and “delay” would be triggered when Permit Decision Guarantee timeframes were exceeded, or (for permits not covered by the Guarantee) 30 days after an application is submitted.

To implement this rider, the DEP would have to create a new bureaucracy, and the state Environmental Quality Board (EQB) would have to write new regulations for it. Then the DEP would enter into contracts with eligible professionals to act as reviewers. Bizarrely, only landscape architects, engineers, land surveyors, and geologists would be eligible to “resolve” applications, and nothing in HB 542 limits what kinds of permits each kind of professional could review. “If you want land surveyors to review oil and gas or hazardous waste permits,” former DEP Secretary David Hess told a reporter, “this bill is for you.”

The third-party-review rider in HB 542 has been widely criticized, and for good reason. It does not explain who (if anyone) would supervise third-party reviewers. There is no provision for public participation, or any conflict-of-interest language to prevent individuals at the same firm from preparing and reviewing applications. Applicants could choose their own reviewers. It’s unclear who would defend third-party-reviewed permits if they’re appealed, or fund the litigation.  And it’s anyone’s guess whether third-party review would actually speed permit processing: HB 542 establishes no timelines for third-party review, and again, if an application is delayed at the DEP, it’s likely problematic and would not be easily “resolved.”

Apologists say third-party review works in other places, pointing to Colorado and the Pennsylvania Department of Transportation, and that issues like conflict-of-interest could be addressed through regulations. But where third-party review happens in Colorado and at PennDOT, it happens on technical engineering and computer modeling issues, not difficult matters of legal compliance.

And while it’s true that the EQB could address some issues by regulation, is that what the General Assembly wants? The House State Government Committee spent much of this spring holding hearings on regulatory “burdens” and “overreach,” and so far in 2017, at least four bills – SB 561, HB 911, HB 1030, and HB 1237 – would give small groups of legislators new powers to kill proposed regulations. These bills are probably unconstitutional, but all the anti-regulatory activity begs the question of what the Senate sees to like in a new, complicated regulatory system. Are legislators really willing to go so far to avoid funding the DEP and protecting Pennsylvanians?

What Will the House Do?

The third-party-review and deemed-approval riders in HB 542 are both meant to address the gas industry’s dissatisfaction with how fast the DEP is processing permit applications. But for the reasons discussed above, these provisions are unworkable, imprudent, and dangerous, and neither addresses the fundamental problem: the fact that the General Assembly isn’t appropriating enough funds to the DEP. Even the Pennsylvania Independent Oil and Gas Association agrees with this.

There is also a question of constitutionality. HB 542 is a Tax Code bill, and the riders were inserted in it at the last minute as a “trade” for a severance tax. This is an example of “logrolling,” a practice in which several statutory provisions lacking majority support are rolled together in one bill that has “something for everyone.” Article III, Section 3 of the Pennsylvania Constitution prohibits logrolling. And as the state Supreme Court recently affirmed, Article I, Section 27 prohibits legislative actions that would violate Pennsylvanians legal rights to clean air, pure water, and a healthy environment.

In any case, making major changes to environmental policy in a Tax Code bill is terrible governance – especially since the changes were voted on with barely any discussion within the General Assembly and no public debate. It’s the legislative equivalent of getting married on Friday to someone you met on Tuesday, on Facebook.

Fortunately, House Bill 542 is not yet law. The Senate passed it on July 27, but the House has yet to take it up. Most observers expect the House to return to Harrisburg on September 11. With hope the solemnity of that date will inspire a more serious, prudent, and environmentally responsible approach to policy-making – and the House will vote down HB 542.

Government Agencies Fail to Take Water Safety Seriously
Anjali Waikar

Is my water safe to drink? This is a fundamental question that government officials should be able to answer without hesitation. Unfortunately for residents in East Chicago, the answer remains a troubling uncertainty.

This weekend, an EPA official was in East Chicago to address the various lead contamination issues facing the city. The EPA official, who claimed not to be a drinking water expert, did not answer the question of whether the water is safe to drink and instead turned the question back on residents, recommending that East Chicagoans decide if they should use a filter.

Background

In late 2016, EPA conducted a pilot study of East Chicago’s drinking water, concluding that elevated levels of lead were present in the water system and that the problem was “system-wide.” Rather than repeat the testing protocol EPA conducted to confirm or refute the federal government’s findings, the Indiana Department of Environmental Management (“IDEM”) conducted its own testing with its own protocol and concluded last month that “with certainty… no system-wide lead issues are present in East Chicago’s drinking water system.”

EPA has since done little to clarify the situation. Since IDEM released its test results last month, EPA has toed a careful line of not contradicting IDEM’s conclusion. An official statement on the study from EPA is notably missing. EPA has not stated in any formal way whether it agrees with IDEM’s testing protocols and results, and has not opined on whether the water is currently safe to drink. In short, EPA has neither retracted nor modified its own original conclusion that there are system-wide elevated levels of lead and that residents throughout the city should use filters.

At the same time, EPA staff members have made public statements—such as at this weekend’s meeting over the Superfund site—suggesting they support the general conclusion that IDEM’s results reveal the water contamination issue is improving and residents can drink the water without use of filters.

Unfortunately, it is difficult to assess EPA’s official position on the overall safety of the water or the extent of the improvement, as the agency has dragged its feet on holding an in-person meeting with community groups and EPA drinking water experts over an emergency petition submitted by the groups in early March. EPA originally agreed to meet in May 2017, but has at least twice canceled and rescheduled the meeting at the last minute, and indicated that key technical experts would not be included in the meeting. And currently, no new date has been set.

Comparing EPA and IDEM’s Testing Protocols

IDEM claimed last month that its testing results reveal there is no system wide problem with lead in East Chicago. EPA has since dodged the question of the water’s safety. So should East Chicagoans be consuming the tap water? Unfortunately, the dearth of details on the methodology behind IDEM’s study and a closer look at the results should make state government officials more cautious about issuing confident statements on the safety of a drinking water system. All officials should be erring on the side of caution until testing results confirm unequivocally that the water is safe to consume.

First, the methodology—IDEM’s announcement last month left unanswered questions about the state agency’s testing methods. Answers to these questions are critical to understanding whether the results adequately reflect the amount of lead in East Chicago’s water system. Factors like the flow rate of the tap water during the sampling, the size of the mouth of the bottle being used to capture the water, and how the sample sites were chosen likely impact the accuracy of the presence of lead. It is crucial that IDEM provide additional details about its recent testing methods to ensure the public’s confidence in the results.

It would have been best if IDEM simply followed the EPA’s pilot study testing protocol. EPA used a method called “sequential sampling,” which draws ten samples throughout an individual’s home pipes from the water main to the street to the tap. While it’s a more expensive test, experts generally agree that sequential sampling is a more accurate testing method for characterizing the extent of lead in the water and for identifying the source of lead within the distribution system. (In fact, officials are considering sequential testing as a potential revision to the current federal requirements.)

Lacking equivalent testing to that conducted by EPA last fall, the agencies’ respective responses to IDEM’s water testing results are at best inconclusive, because the agencies are essentially comparing proverbial apples to oranges. That is, no agency has conducted repeat testing using the same methodology and the same or equivalent sample sites over different periods of time since EPA identified the citywide corrosion control failure.

Without equivalent, robust testing over time, agencies are limited in their ability to conclude credibly that the water system has in fact improved in a meaningful way. And to win back public trust from a community that has faced such an inexcusable history of environmental injustice and egregious agency failures, such testing cannot be done solely by the state agency that approved the inadequate corrosion control treatment in the first place.

Second, setting aside these methodological questions, IDEM’s results show concerning levels of lead in the homes tested. IDEM stated that all test results except one sample were below the EPA’s action level of 15 parts per billion (ppb). However, pointing to the current—and widely acknowledged outdated—federal action level of 15 ppb is misleading.

The 15 ppb threshold comes from the federal Lead and Copper Rule, which requires certain water systems to take additional actions if lead concentrations exceed 15 ppb in more than 10% of the customer taps sampled. But the 15 ppb is not a health-based standard, and no amount of lead is safe to consume. The inadequacies of the Lead and Copper Rule, including the 15 ppb threshold, are widely acknowledged, including by EPA itself. Regardless, 15 of the 27 samples in IDEM’s testing revealed significant levels of lead, even after running the water for several minutes. Therefore, in a community already facing cumulative exposures to lead from the air, soil and water, IDEM should interpret its testing data with caution and take proactive steps to protest residents.

Third, the drinking water situation in East Chicago is even more precarious given recent reports of black sludge found in residents’ sinks and tubs. Residents both within and outside of the Superfund site have reported finding a black substance in their bathrooms and kitchens coming from their tap water. EPA could only state at this weekend’s meeting that it was aware of the situation and is in the process of testing the material to determine its cause and solutions. Whatever additional testing is needed to address this problem needs to be done immediately.

Where does this all leave East Chicago? An attorney representing the City of East Chicago broadly stated at this weekend’s public meeting that residents should be using filters and that free filters are available at the water filtration department. This is a step in the right direction, but it was unclear from the attorney’s statements whether the filters are available to residents citywide, as opposed to solely residents of the Superfund site. Such filters should be made available to East Chicagoans across the city (including those individuals who may be homebound or disabled) until additional adequate testing confirms that the water is in fact safe to drink, and residents should have resources made available to them to ensure that such filters are properly installed.

Meanwhile, NRDC and our community partners continue to wait for a response from EPA on the emergency petition that we filed in March 2017 over the city’s drinking water. EPA should take a proactive role in ensuring that East Chicago and the state are protecting residents from lead in the city’s drinking water, and provide an alternate source of clean, safe water for residents until testing results from robust sampling adequately demonstrate that the water is safe to drink. 

Until such time, officials at every level of government must coordinate their public messaging, acknowledge the real risks to health from lead in the city’s drinking water and offer practical advice on how residents may consume water safely, instead of giving themselves a pat on the back for C+ results from inadequate testing and vague statements that put the burden of safety on residents.

NRDC in Action
An Uphill Battle, and Persistence, in Flint
These four NRDC lawyers would finish each other’s thoughts—at any odd hour of the day or night—in their quest to help victims of the city’s lead crisis.
NRDC attorneys (from left) Jared Knicley and Sarah Tallman with ACLU lawyers Bonsitu Kitaba and Michael Steinberg discussing the lead water pipe replacement process in Flint, May 2017

Angela Guyadeen

In February 2016, at the height of the Flint water crisis, Anjali Waikar found herself with a team of NRDC staff going from house to house, knocking on doors, and asking residents about the specific hardships they were facing.

“Some people didn’t talk; others lived in pretty challenging situations,” Waikar, a staff attorney on NRDC’s environmental justice team, remembers. One woman in her mid-60s said she walked a mile and a half with her son each way to pick up bottled water from a distribution center for her family—nearly every single day. For another woman with a broken faucet, simply talking about water made her sob. Yet others hadn’t even heard of the water crisis, despite its already receiving widespread national news coverage.

Waikar was with fellow NRDC and ACLU staffers in Flint as part of an effort to help get justice for the tens of thousands of people, including 9,000 children, exposed to the city’s poisoned water supply. The problems had begun in April 2014 after officials, looking to cut costs, switched the city’s drinking water supply from Detroit’s Lake Huron to the Flint River. Because they failed to have it treated properly, the highly corrosive water leached lead from Flint’s aging pipes, and the lead went directly into people’s drinking glasses.

Residents began noticing the effects right away—dark-colored, foul-tasting, bad-smelling water; skin rashes; hair loss—but it wasn’t until the following summer that government officials began to take the problem seriously. Investigations by the ACLU of Michigan uncovered widespread water issues, and at the group’s invitation, NRDC stepped in to help. The team came together quickly. “It was a crisis, so we were trying to respond accordingly,” says Dimple Chaudhary, who was NRDC’s lead counsel on the Flint case. Joining Waikar and Chaudhary were Sarah Tallman, a Chicago-based attorney, and Evan Feinauer, a Chicago-based legal fellow, both part of NRDC’s litigation team. Jared Knicley, an NRDC attorney in the Washington, D.C., office, rounded out the team several months later when the legal proceedings ramped up.

The lawyers worked seamlessly from the start, and Chaudhary was struck by her teammates’ energy, passion, and commitment to the work, evident from day one. “I would often feel guilty,” she says. “I’d say, ‘It’s Saturday night, you should be out having fun!’ Instead we’re passing sections of briefs back and forth to each other all night.”

Knicley also highlights the unique rapport that grew out of the group’s constant communication around their mission. “It was something I’ve never experienced before,” he says. “We really were finishing each other’s thoughts and would even wake up in the middle of the night with the same ideas about the case.”

Tallman and Knicley in Flint

Angela Guyadeen

Above all else, the team members were united in their devotion to the community they were serving. As Waikar, an extrovert who helped with much of the relationship-building in Flint early in the case, points out, “This is about them, not about us.”

In that spirit, they began by filing an emergency petition with the U.S. Environmental Protection Agency seeking immediate help getting Flint residents safe drinking water. Then, in January 2016, NRDC—along with Concerned Pastors for Social Action, Flint resident Melissa Mays, and the ACLU of Michigan—filed a federal lawsuit seeking to require the city of Flint and the state of Michigan to replace the lead pipes and to follow federal regulations for treating and testing the water.

Melissa Mays (center) speaks at a town hall to discuss the settlement with (from left) NRDC attorneys Dimple Chaudhary and Sarah Tallman, NRDC Health program director Erik Olson, and Pastor Allen Overton.

Angela Guyadeen

In March, the team filed a preliminary injunction motion, supported by 1,200 pages of evidence and the resident testimonies NRDC had collected, asking the court to require delivery of bottled water to people’s homes. That was a long shot, Tallman admits, but in the end the court granted the request. “It was not fair just to expect people to go out and track down their own water, day in and day out,” she says.

The victory, though just one step in the legal battle, made an especially strong impact on Tallman, who had always wanted to practice public interest law―and whose passion, her teammates say, jump-started NRDC’s response to the case. “To know that we had at least a small part to play in making sure that happened has been empowering for me as a young attorney—to really see the impact that lawyering and this kind of advocacy can have.”

Meanwhile, the lawyers kept up their fight outside the courthouse, too. “This kind of case really requires multiple tools in the toolbox to litigate, and not just people who can write beautiful briefs at their desks,” says Waikar, who emphasizes the importance of building local trust. “It requires boots on the ground, especially when the relief you’re seeking has the potential to impact an entire community.” Ultimately, those front-stoop meetings held by the team served to get locals affected by the crisis into the courtroom themselves; many testified as witnesses at the preliminary injunction hearing or shared their stories in written declarations provided to the judge.

Waikar also cites the importance of addressing the immediate needs of the citizens of Flint, rather than just the long-term aims of the lawsuit. In one case, that meant accompanying a woman affected by the tainted water on a trip to get dentures. She adds that sensitivity is an especially important quality in lawyers. “It’s very easy to mess up relationships,” she says. “We’re coming in at a place of deficit to begin with, because already people don’t trust us, so the slightest misstep can really impact people.”

And as a legal team of mostly young women, the NRDC crew had to overcome ingrained prejudice on many fronts. “I think some on the other side underestimated us at first,” says Knicley. “But they didn’t make that mistake for very long. When Dimple and Sarah are in the room, it doesn’t matter if they’re surrounded by men, surrounded by women, surrounded by aliens, they’re going to run the show. Because this was their case. they knew the facts; they knew the law; they knew what was in our clients’ interest.”

In March 2017, just a little over a year after NRDC filed its suit, the city of Flint and state of Michigan agreed to replace the lead pipes and put an effective lead-monitoring system in place. As part of the $97 million settlement, authorities have three years to examine water service lines for at least 18,000 homes and replace those made of lead or galvanized steel.

Margie Kelly, a communications officer in NRDC’s Chicago office, remembers the feeling in the courtroom that came over her just before the settlement was announced. “Dimple’s up there running the show, and Sarah’s up there, and you look at the other side, the Michigan lawyers—and they’re the cream of the crop, the governor’s lawyers—and they’re all older guys, mostly white,” she recalls. “They’re just sitting there looking at their shoes because these two young women crushed them. There’s no way around it.”

But the team is careful not to take too much credit for the victory, citing the courage and determination of Flint’s residents and community activists, as well as collaboration with colleagues from ACLU and other parts of NRDC chipping in over the course of 14 months. “The four of us worked as one unit,” Knicley says. “But it was really the product of 20 or 30 people that came together and pitched in and made sure NRDC was doing the best we could for the people of Flint.”

Though the settlement represents a major step forward, Flint’s problems are far from over. Residents continue to receive bills for water they can’t drink unfiltered. There will be long-term impacts of the lead ingestion on public health, and concerns about other contaminants in the water remain. There’s still a lot of work to be done in Flint—not the least of which is ensuring that city and state officials follow through on their obligations to the people they serve. The situation remains deeply troubling, but, says Chaudhary, “that’s why you get into this work to begin with, so you do what you can to help people in those circumstances.”

Nicole Greenfield
onEarth Story

Vague regulations let government officials hide drinking water contamination from the public.

onEarth Story

The cruel and un-American folly of shutting down the EPA’s environmental justice program.

Explainer

The dirty truth about America's waterways.

Q&A

Lots of people think drinking bottled water is safer. Is it?

Personal Action

Quick and easy things you can do to reduce water pollution and runoff.

Explainer

America is facing its second lead crisis. This time around, the effects are less obvious, but no less worrying.

Explainer

If lead poisoning seems like a story from the past, think again: The toxic metal lingers in communities all over the United States.

onEarth Story

High-school students share their experiences of the city’s water crisis in this powerful art installation.

Southeast Dispatch

For drinking water, flood control, climate defense, habitat protection, fishing, swimming, and, of course, craft beer.

FLINT, MICHIGAN — Contrary to some rumors, the plaintiffs in the Concerned Pastors lawsuit—including Concerned Pastors for Social Action, NRDC, ACLU of Michigan, and Melissa Mays—have not sent a letter criticizing the city council or demanding that the City of Flint agree immediately to a specifi

Craft Brewers Oppose Proposal to Repeal Clean Water Rule
Becky Hammer

Today a group of 48 craft brewers sent a letter to the Environmental Protection Agency and U.S. Army Corps of Engineers opposing the agencies’ proposal to repeal the Clean Water Rule. These brewers, who are partners in NRDC’s Brewers for Clean Water campaign, are standing up for the rule because it protects the sources of clean water on which their businesses depend.

Here’s what they said:

Ms. Donna Downing, Office of Water, EPA

Mr. Gib Owen, Office of the Assistant Secretary of the Army for Civil Works, Department of the Army

Dear Ms. Downing and Mr. Owen:

We oppose any changes to the Clean Water Rule that would weaken the protections it established for critically important waterways like small streams and wetlands.  Our craft breweries depend on those waterways to provide the clean water that we use to brew our beer.

Beer is mostly water, so the quality of our source water affects our finished product.  Even small chemical disruptions in our water supply can alter the taste of a brew or influence factors like shelf life and foam pattern.  We need reliable sources of clean water to consistently produce the great beer that is key to our success.  Thanks in part to this important natural resource, the craft brewing industry contributes about $55.7 billion to the U.S. economy each year, along with 424,000 jobs.   

Brewers have been proud to support the Clean Water Rule since it was first proposed.  Because the rule helped protect the sources of drinking water for 117 million Americans from pollution and destruction, it provided certainty that we would continue to have access to the clean water on which our livelihoods depend.  Importantly, the rule was based on sound science.  The record supporting the rule showed unequivocally that the waters it protected had biological, chemical, and physical connections to larger downstream waterways.

In a February 28 executive order, President Trump directed your agencies to review the Clean Water Rule and rescind or revise it, without providing any rational justification for doing so.  Your agencies have now formally proposed to repeal the rule, with the stated intent of later adopting a replacement.  We strongly oppose any rollbacks from ensuring guaranteed protections for all waters that the science shows to be important to downstream water quality. 

We understand that the president directed your agencies to develop the new rule under a different legal test.  That test has no scientific basis and would eliminate guaranteed safeguards for countless wetlands, as well as innumerable streams that don’t flow year-round.  We oppose that approach because it would fail to preserve water quality and was rejected by a majority of the Supreme Court.

We are depending on you to maintain or strengthen the safeguards established under the Clean Water Rule.  Protecting clean water is central to our long-term business success.  Thank you for considering our views on this important matter.

Sincerely,

Allagash Brewing Company (Maine)
Andersonville Brewing Co. (Illinois)
Arbor Brewing Company (Michigan)
Avery Brewing Company (Colorado)
Bang Brewing (Minnesota)
Bar Hygge/Brewery Techne (Pennsylvania)
Baxter Brewing Co. (Maine)
Brewery Vivant (Michigan)
DryHop Brewers (Illinois)
Earth Bread + Brewery (Pennsylvania)
Engrained Brewing Company (Illinois)
Flossmoor Station Restaurant & Brewery (Illinois)
Flying Mouse Brewery (Virginia)
Founders Brewing Company (Michigan)
Fremont Brewing (Washington)
Great Lakes Brewing Company (Ohio)
Half Acre Beer Company (Illinois)
Half Moon Bay Brewing Co. (California)
Harmony Brewing Company (Michigan)
Hops & Grain Brewing (Texas)
Hopworks Urban Brewery (Oregon)
Horse & Dragon Brewing Company (Colorado)
Intersect Brewing (Colorado)
La Birreria (New York)
Lagunitas Brewing Company (California)
Lakefront Brewery (Wisconsin)
Lost Rhino Brewing Company (Virginia)
Maine Beer Company (Maine)
McClellan’s Brewing Company (Colorado)
New Belgium Brewing Company (Colorado)
Oak Park Brewing Co. (Illinois)
Odell Brewing Company (Colorado)
Old Bust Head Brewing Company (Virginia)
Pateros Creek Brewing (Colorado)
Revolution Brewing (Illinois)
Right Brain Brewery (Michigan)
Rising Tide Brewing Company (Maine)
Saint Benjamin Brewing Co. (Pennsylvania)
Short’s Brewing Company (Michigan)
Sleepy Dog Brewery (Arizona)
Smartmouth Brewing Company (Virginia)
Smuttynose Brewing Co. (New Hampshire)
Snowbank Brewing (Colorado)
Starr Hill Brewery (Virginia)
SweetWater Brewing Company (Georgia)
Temperance Beer Co. (Illinois)
Two Brothers Brewing Company (Illinois)
Wild Onion Brewery (Illinois)

Blog Post

Today, the Trump administration announced a proposed rulemaking action. If this is finalized, it will throw away the Clean Water Rule, a signature achievement by the prior administration that helps protect water bodies around the country.

Trump's Attack on Clean Water: What You Need to Know
Jon Devine

At a budget hearing this morning Environmental Protection Agency Administrator Scott Pruitt announced that the Trump administration would issue a proposed rulemaking action today. If this is finalized, it will throw away the Clean Water Rule, a signature achievement by the prior administration that helps protect water bodies around the country. This post discusses the Rule and the Trump administration's rollback scheme.

What Is the Clean Water Rule and Why Is It Important?

The EPA and the U.S. Army Corps of Engineers adopted the Clean Water Rule in May 2015 to clear up longstanding confusion over which water bodies the landmark 1972 Clean Water Act protects. The rule more clearly defines what kinds of waters get guaranteed coverage and which ones are exempt.

The water bodies at the center of the Clean Water Rule 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 U.S., which filter pollution from contaminated runoff and replenish groundwater. An acre of wetlands can also store upwards of a million gallons of flood water, and wetlands provide essential fish and wildlife habitat, supporting a robust outdoor recreation economy.

Before the Clean Water Rule, confusion hamstrung law enforcement, scuttling pollution investigations. EPA enforcement staff revealed that an estimated 489 enforcement cases in just a few-year period were adversely affected. For example, EPA reported that a Texas facility discharged around 43,000 gallons of wastewater on-site, which entered a creek that flowed into a large waterway. After EPA spent over 300 hours to determine the legal status of the waters, the Assistant U.S. Attorney declined to prosecute the case because of concerns about the government’s authority.

What Does It Mean for a Water Body to Be Protected by the Clean Water Act?

For protected water bodies, numerous pollution prevention, control, and cleanup programs kick in. For example:

  • Wastewater dischargers and sewage plants may not dump into such waters without pollution-limiting permits;
  • Facilities storing significant amounts of oil near covered waters must develop oil spill prevention and response plans;
  • States must identify and prepare plans to clean up protected waters that don’t meet state water quality standards;
  • Industrial and commercial developers ordinarily must obtain approval before discharging solid material into protected waters, destroying valuable wetlands and degrading lakes and streams, and these dischargers sometimes must mitigate their impact by creating, preserving, or enhancing other water resources;
  • Nobody may discharge “any radiological, chemical, or biological warfare agent, any high-level radioactive waste, or any medical waste” into covered waters; and
  • Entities disposing sewage sludge that could pollute such waters must abide by pollution control standards.

How Was the Clean Water Rule Developed?

After many stakeholders, ranging from regulated dischargers to environmentalists to states, requested it, EPA and the Corps undertook rulemaking to clarify their rules. EPA produced a report which reviewed more than 1,200 peer- reviewed scientific publications and confirmed that streams and wetlands are connected to downstream waters in significant ways.

The agencies then developed a rule that relies on this strong scientific basis and specifies that the Clean Water Act can protect those kinds of waters that have meaningful water quality impacts downstream. But the rule was not developed in a vacuum; the agencies took comment on the proposal from April 21-November 14, 2014, a long comment period that itself followed years of public engagement. During the comment period, EPA met with more than 400 stakeholders and received more than one million comments, 87% of which were supportive of the rule.

Who Supported the Clean Water Rule?

Numerous stakeholders support the Clean Water Rule, with polling showing that:

  • 80% of small business owners supported the proposed Clean Water Rule (91% of Democrats, 73% of Independents, and 78% of Republicans). A strong majority, 71%, also said that clean water protections are necessary to ensure economic growth.
  • 83% of hunters and anglers surveyed by a bipartisan team thought that EPA should apply the rules and standards of the Clean Water Act to smaller, headwater streams and wetlands. Support included 77% of Republicans, 79% of Independents and 97% of Democrats.
  • Similarly, 80% of voters nationwide supported the rule, including 68% of Republicans, 75% of Independents, and 94% of Democrats. Additionally, more than three in five voters think the government should be doing more to protect the nation’s waters from pollution.

How Would the Trump Administration Weaken Protections?

In February, President Trump signed an executive order starting a process to repeal the Clean Water Rule and replace it with a set of rules that would substantially weaken the regulations that the Reagan administration adopted. Specifically, the order tells the agencies to “consider interpreting” the Clean Water Act as the late Justice Antonin Scalia did in a 2006 opinion. The agencies, led by EPA Administrator Scott Pruitt, have started planning actions that would do just that. This is the same Scott Pruitt who, as Oklahoma’s Attorney General, sued the agencies to kill the Clean Water Rule, and routinely and falsely denigrates it as covering trivial features like puddles.

Following Justice Scalia’s opinion would disable federal pollution safeguards for streams unless they are “relatively permanent,” and exclude wetlands that do not have a “continuous surface connection” to other covered waters. The implications of that are astonishing; it could mean the loss of pollution protections for the nearly 60% of streams in the lower 48 states that don’t flow year-round—almost 2 million miles of streams. It also could mean the end of Clean Water Act protection for countless wetlands—perhaps even most of the 110 million acres in the continental U.S.—because they don’t have a surface connection to “relatively permanent” waters.

That is unsound policy from a scientific, legal, and fiscal standpoint. Streams and wetlands provide some of the most critical ecosystem services, including water filtration services supporting clean drinking water and water storage services protecting communities from flooding and from drought. Unlike the Clean Water Rule, the Administration’s clean water rollback plan ignores the scientific evidence demonstrating how water bodies influence downstream water quality and water flows. It fails to acknowledge, for example, the increased costs for drinking water treatment associated with increased water pollution, and the increased public and private costs associated with increased flooding, flood risks, and flood damage. The rollback plan also reflects unsound legal reasoning. A majority of justices on the Supreme Court rejected Justice Scalia’s opinion as the lone standard for Clean Water Act coverage, as did the Bush administration and every federal court of appeals to consider the question.

What’s Happening with the Rollback Plan Now?

The Administration intends to roll back safeguards in two steps. It plans to repeal the Clean Water Rule in a hurry, then invent a new, disastrous rule that would roll back clean water safeguards for wetlands and streams, as the executive order urges. The agencies' proposed repeal rule, announced today, is Step One. They have also started getting input from selected interested parties about the new rule. Administrator Pruitt recently said he hopes to finish both rules by the end of 2017 or early 2018.

This two-step scheme seems to reflect administration fears that their second step, to change the legal test and radically roll back what the Clean Water Act protects, will fail, so they don't want to tie their repeal of the Clean Water Rule to that anchor. They also seem to be rushing the Clean Water Rule repeal to avoid judicial review of the Clean Water Rule in court, where litigation about the validity of the Clean Water Rule remains pending. They are racing to repeal the rule before a court can independently review its basis in science and the law.

Ultimately, the Administration’s clean water rollback plan means that fewer streams, wetlands, and other waters would be protected by the Clean Water Act’s oil spill prevention program, its requirement to develop cleanup blueprints for polluted waters, its pollution control standards for industrial dischargers, its protections against burying streams and wetlands, and numerous other safeguards. It means more pollution to the lakes and streams we rely on for drinking water supply or for fishing and swimming, and a green light for the rampant destruction of wetlands that prevent dangerous flooding.

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