Last week at an agribusiness convention in Texas, President Trump announced a new rule stripping federal environmental protections from intermittent streams, groundwater, and more than half of America’s wetlands. The policy effectively nullifies the 2015 Clean Water Rule, a federal regulation that included wetlands and tributaries among the “waters of the United States” protected by the Clean Water Act.
The change will let landowners dump pollutants such as pesticides and fertilizers directly into thousands of previously protected waterways, and allow developers to drain and fill some wetlands for building projects. It’s a boon to the mining business, the oil and gas industry and even, as the New York Times noted drily, golf course owners like Trump.
The president chose to announce the rollback at gatherings of industries that had pressed hardest for the change and will benefit most from it. “I terminated one of the most ridiculous regulations of all: the last administration’s disastrous Waters of the United States rule,” he said Jan. 19 at the American Farm Bureau Federation’s annual convention in Austin. The Environmental Protection Agency chief, Andrew Wheeler, formally introduced the plan to rounds of applause at the National Association of Home Builders annual conference in Las Vegas four days later. Wheeler, a former coal industry lobbyist, said the new rule shifts regulatory responsibility away from the federal government to state regulators and private landowners.
The new plan marks the culmination of Trump admin’s three-year effort to roll back the Obama-era Clean Water Rule. That rule was the result of four years of study and analysis referencing more than 1,200 peer-reviewed publications on water connectivity. The proposed rule was subject to multiple rounds of scientific review by experts in fields ranging from biology to hydrology to geology before it took effect in 2015.
The process confirmed with scientific rigor what anyone who spends any time at all in the outdoors knows to be true: All water flows downhill and often finds its way to rivers, lakes and the sea via underground seeps or intermittent floods. It’s why we don’t camp in dry washes, which can—and frequently do—flash after upstream storms, carrying anyone and anything with it. You see it on desert rivers, where side-canyons regularly burp out a chocolaty slurry freighted with mud and twigs and all manner of debris, seen and unseen. Sometimes it’s so thick you can smell the earth in it, and it only stands to reason that everything else in the water’s path—pesticides, fertilizers, fracking waste, your granola bar wrapper—is in there too.
The EPA under then-President Barack Obama studied the issue for four years and determined that in order to protect the waters of the United States as Congress intended, all waters must receive the protections of the Clean Water Act, including ephemeral streams, underground waterways, and wetlands that aren’t adjacent to rivers, lakes or oceans. The Clean Water Rule was adopted in May 2015, and was immediately challenged in court. A federal appeals court issued a stay before the rule took effect, which the Supreme Court overruled in 2018 on jurisdictional grounds.
In other words, the Obama admin’s rule has never been fully implemented. Now at President Trump’s direction, it’s been replaced with a new rule, offered without the scientific basis of its predecessor. Last month an EPA advisory panel of 41 scientists, many of them handpicked by the Trump administration, issued a strongly worded draft finding (PDF) that the new rule “neglects established science.”
The new water rule exemplifies the way in which the current administration has dismissed or marginalized scientific evidence at odds with its policy goals, according to Blan Holman, a lawyer specializing in federal water policy at the Southern Environmental Law Center.
“This will be the biggest loss of clean water protection the country has ever seen,” Holman told the New York Times. “This puts drinking water for millions of Americans at risk of contamination from unregulated pollution. This is not just undoing the Obama rule. This is stripping away protections that were put in place in the ’70s and ’80s that Americans have relied on for their health.”
The new rule effectively erases the Obama-era Clean Water Rule and turns the regulatory clock back to 1972, when Congress passed the landmark Clean Water Act. That legislation was a bipartisan effort sparked by a real emergency. Only one-third of the nation’s waters were safe for fishing and swimming in those days, a fact punctuated by a photo in TIME magazine of black smoke billowing from the burning Cuyahoga River. (The image shocked the nation, though river fires were a regular occurrence in Cleveland at the time).
When the Clean Water Act passed in 1972, Republican Senator Howard Baker of Tennessee declared it “far and away the most significant and promising piece of environmental legislation ever enacted by the Congress.” The legislation is part of a holy trinity of environmental laws passed in the late 1960s and early 1970s, together with the Clean Air Act and Endangered Species Act.
All three are among nearly 100 environmental laws the Trump administration has sought to weaken or repeal, often using rule changes to roll back enforcement rather than challenging the laws scientifically or legislatively.
The new water rule follows this playbook. The administration calls it the Navigable Waters Protection Rule in a nod to its reliance on a legal definition of “navigable waters” that excludes many wetlands and streams that flow intermittently or underground.
“The Clean Water Act applies broadly to all ‘waters of the United States,’ but the Trump administration proposes to shrink that term to something more like “waters of the United States that are big enough for boating,” wrote Earthjustice lawyers Anna Sewell and Jennifer Chavez.
Enforcement of the Clean Water Act has always been a seesaw affair, played out in the courts and meeting rooms of government agencies. Even its passage in 1972 was a legislative cliffhanger, with 40 conference committees and a last-minute veto by then-President Richard Nixon, citing the cost of enforcement.
Lawmakers on both sides knew there was something bigger than party politics at stake. The Senate needed only two hours to override Nixon’s veto, and the House followed suit the same day–or rather night, as the votes took place well after midnight. The American public at the time was demanding a clean environment, and politicians like Baker were listening.
“As I have talked with thousands of Tennesseans, I have found that the kind of natural environment we bequeath to our children and grandchildren is of paramount importance,” he said on the Senate floor. “If we cannot swim in our lakes and rivers, if we cannot breathe the air God has given us, what other comforts can life offer us?” That night he and more than 100 other lawmakers crossed party lines to override Nixon’s veto.
Such an outcome is almost impossible to imagine in today’s Congress. The future of Clean Water Act’s enforcement, therefore, will instead be determined by who the American people send to Congress and the White House in the coming years.
Top photo: Wikimedia Commons