ROLLING BACK

The clean water act

How the Trump Administration is changing water protections 

across the U.S.

Eliminating or scaling back federal environmental regulations has been a top priority of the Trump administration.  And the results of this, with help from many Republicans in Congress, has been staggering.  Over the course of the first three years of this administration, there has been nearly 100 environmental rules, laws, and regulations eliminated or scaled-back (https://eelp.law.harvard.edu/regulatory-rollback-tracker/)

While the majority have been rollbacked under the Environmental Protection Agency (EPA), many other agencies and federal administrations have aided in this effort.  These rollbacks have affected many aspects of our environment; the air, ground, water, animals, toxic substances, and infrastructure.  The extent of agencies that have altered or instated new policies threatening these regulations is seen below.

Click to investigate each rollback by category.

Let's take a closer look at one of these regulations...

Under the Trump Administration, the Environmental Protection Agency (EPA) and Army Corps of Engineers have repealed and replaced the “Clean Water Rule” regulation, a section of the Clean Water Act.  The new regulation significantly reduces the number of national environmental protections for steams, wetlands, and groundwater sources.

Arkansas

Kansas

West Virginia

CLEAN WATER ACT HISTORICAL CONTEXT

The Clean Water Act is the primary federal law of the United States governing water pollution.  Originally enacted in 1972, it is comprised of a set of laws and regulations administered by the EPA.  It has been expanded and contracted throughout the decades and is, like many pieces of legislation, a consistent battle between stakeholders.  Its objective is to restore and maintain the chemical, physical, and biological integrity of the nation’s waterways and wetlands.  It requires anyone who wishes to conduct business that could pollute waters of the United States (WOTUS) to apply for a permit and address any environmental concerns that arise from their activities.  But this gets murky in the details. 

 

The Clean Water Act does not precisely define what the “waters of the United States” means.  For example, the law clearly applies to major navigable rivers, lakes, wetlands with a visible hydrological connection, and any visibly connected waterways.  However, what about waterways and wetlands that are connected further upstream to navigable waters?  What about streams that are only connected during certain times of the year?  To get into the weeds here, first we need to go over some legal and ecological definitions critical to understanding the Clean Water Act.

UNDERSTANDING RIVER ECOLOGY AND HOW IT APPLIES TO THE CLEAN WATER ACT

ESTABLISHMENT OF CLEAN WATER RULE

This uncertainty of what exactly the “waters of the United States” spawned thousands of legal cases and most notably, a Supreme Court decision that many argue caused more confusion than clarity.  In Rapanos vs. United States in 2006, Justice Anthony Kennedy argued that the Clean Water Act applied to locations that “significantly affect the chemical, physical, and biological integrity of other covered (within understood jurisdiction) waters.”  However, Justice Antonin Scalia argued that these protections only applied to locations “with a continuous surface connection” to navigable waters.  After a split decision on the case, it was not clear which opinion took precedence.

After decades of contentious debates and legal proceedings, the Obama Administration enacted the Clean Water Rule in 2015 to define the Waters of the United States This finally clarified which waterways were automatically covered by the protections of the Clean Water Act and which still required a case-by-case assessment. 

 

The EPA under the Obama administration argued the rule didn’t significantly expand the water under the Clean Water Act’s jurisdiction, just created more certainty to avoid bringing cases to court when legal grey areas arose.  However, the pushback from the rule was quick and severe.  Opponents called it federal government overreach, and a power grab by the EPA.

This backlash led Trump to promise a rollback of the Clean Water Rule on the campaign trail, and now, in the third year of his term, he has delivered on this promise. 

Maryland

Utah

Virginia

NAVIGABLE WATERS PROTECTION ACT

The Trump administration’s replacement, called the Navigable Waters Protection Rule, has been officially implemented as of the end of March 2020.  Now, the waters of the United States that can be regulated under the Clean Water Act can only refer to “relatively permanent, standing or flowing bodies of water”, not “occasional, intermittent, or ephemeral flows”.  Furthermore, a mere “hydrological connection” is not sufficient to qualify a wetland.  It must have a “continuous surface connection” with a (newly defined) “water of the United States” that makes it “difficult to determine where the ‘water’ ends and the ‘wetland’ begins”. 

This new rule eliminates all ephemeral streams...

...and most intermittent streams...

...from being considered waters of the United States, despite their connections to larger protected bodies of water and waterways.  The system is now protected only at the terminuses, leaving the vast majority of the headwaters free from federal environmental oversight.  Furthermore, the definition depends on flow, so as droughts become more common with the effects of climate change, some perennial streams may be reclassified and lose their protection. 

In regards to wetlands, the definition of what falls under the category of adjacent waterways has been significantly rollback.  For a wetland to be considered protected, it must be “adjacent to waters of the United States” with a “continuous surface connection”.  This deregulates a wide variety of wetlands that are connected to the water system, however, the water is not visible from the surface, instead traveling below ground.

Pennsylvania

Nevada

Oregon

LOBBYING TO CHANGE THE CLEAN WATER RULE

The original Obama rule explicitly exempted a number of bodies of water often found on farms, such as puddles, ditches, artificial ponds for livestock watering, and irrigation systems that would revert to dry land if irrigation were to stop.

However, this did not deter farmers, especially in the Western regions of the country, to worry the Clean Water Act changes, under the Obama administration, would apply to their irrigation canals.  These systems divert water from streams and may connect back to larger bodies of water.  Farmers, and the ranching community, believed these canals would now fall under Obama's rule definition of a tributary.  Any use of fertilizer or ranching by-products, may now be regulated as they lead into the waters of the United States.  Many of these constituents, as well as large ranching and agriculture lobbying groups are believed to have pushed for these changes.  Let's look at this idea in more detail by analyzing land use patterns in areas containing the most stark rollback regarding ephemeral streams.

Shown here are the vast majority of ephemeral streams of the United States.  They are colored by the land use category of the majority of land they run through.  From here, we can analyze the constituents whose environmental regulations have been scaled back the most dramatically in this Clean Water Act section.

The majority of ephemeral streams, now under no federal environmental regulation, lie within western shrub land.  This land is primarily used for ranching, through publicly owned land run by the Bureau of Land Management (BLM), and privately, by a collection of western ranchers.

The constituents that lobbied for this rule change have greatly benefitted from their actions, and this is only in the context of the ephemeral stream rollbacks in the new rule.  These rollbacks may appear to only affect these sections, though as mentioned, these streams feed into the fresh water system we all depend upon further down the stream for drinking, agriculture, recreation, and so on.  

North Dakota

Missouri

New Mexico

FEDERAL VS. STATE PROTECTIONS

The EPA argues the rule change, "clearly defines the difference between federally protected waterways and state protected waterways," said EPA acting administrator Andrew Wheeler.  This is an important part of this discussion, recognizing states have their own policies and regulations regarding the Clean Water Act.  However, each state has vastly different degrees of oversight, and furthermore, water does not stay within state boundaries.  Watersheds stretch across regions, exemplified by the Mississippi-Missouri Drainage Basin which contains parts or the entirety of 24 states.   

Even when more directly analyzed, streams and rivers that flow between states without a fork, i.e., the waterway travels from one state into the next without any significant water intake or outtake flow, makes the map of state boundaries look like the map below, a far cry from current state boundaries.  

EPA and the Army Corps of Engineers argue that the repeal will not harm the environment, since states will step up to protect these waters and wetlands once the federal government removes Clean Water Act protection. However, something as important and interconnected as clean waterways must be regulated from a federal level.  The Clean Water Act has made significant strides to restore water quality around the country, and rolling back these regulations will undue much of the work that has been done.  While the Trump Administration claims states and industries will step up to protect our waterways, the history of water pollution regulation in this country instructs otherwise.  There are many ways to get involved in water protection advocacy in your local community, state and on a national level, and some of the many organizations that have, and continue to work tirelessly on this are listed below.

Organizations:

Sources:

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