Proposed Repeal and Replacement of Clean Water Rule:
Revised Definition of "Waters of the US"
Public Comment Closed on April 15, 2019
See Save EPA's submitted comments @ http://saveepaalums.info/submittedcomments
Docket and public hearing information @ https://www.regulations.gov/docket?D=EPA-HQ-OW-2018-0149
Docket ID #: EPA-HQ-OW-2018-0149
Public hearing was held February 28-29, 2019, in Kansas City, Kansas
Save EPA thanks Bob Wayland, Ellen Gilinsky and Jeanne Christie for providing the information on this web page.
What’s at Risk, Talking Points, and What You Can Do
The Trump Administration has proposed removing Clean Water Act protections from a substantial portion of the nations’ streams and wetlands. These waterbodies provide drinking water for people and habitat for many living resources. They provide recreational opportunities for hunters and fisherman as well as outdoor enthusiasts, which in turn supports our economy. Wetlands reduce the impacts of floods and hurricanes saving property owners and taxpayers millions of dollars annually.
The Administration proposes to repeal and replace the Obama Administration’s 2015 Clean Water Rule, which was intended to clarify which waters are protected under the federal Clean Water Act. The scope-of-coverage question has been complicated by confusing and conflicting court rulings. The 2015 clarifying rule was developed after a 200-day comment period, hundreds of meetings, and a comprehensive science review.
President Trump issued an Executive Order on February 28, 2017 which directed EPA and the Army Corps of Engineers (USACE) to repeal and replace the Clean Water Rule (also known as the "waters of the U.S." rule): https://www.whitehouse.gov/presidential-actions/presidential-executive-order-restoring-rule-law-federalism-economic-growth-reviewing-waters-united-states-rule/. Since then, the Trump Administration has finalized a two-year delay of the 2015 rule and proposed its permanent repeal.
As a final step in carrying out the order, the Trump Administration is now proposing a dirty water rule that would narrow the definition of "waters of the U.S." As a factual matter, this proposal would go beyond repeal of the 2015 rule: It would remove protections that have been in place for decades. A copy of the proposed rule, along additional material including an economic analysis and fact sheets can be found here: https://www.epa.gov/wotus-rule/step-two-revise.
Because of a federal district court decision on litigation over the two-year delay, the 2015 definition of "waters of the U.S." is currently in force in 22 states, the District of Columbia and U.S. territories, according to EPA. The prior, unclear definition is in force in the rest of the country.
The Dirty Water Rule Versus Existing Protections
Proposed Rule Would Provide Broad Exclusions from Protection
While adoption of the Administration’s December 2018 proposal would have different impacts in different regions of the country, as much as half of currently protected wetlands and ponds and 18% of streams nationally would lose protection and be open to federally unregulated discharges of pollution by industries and fill by developers, according to analyses provided to then-EPA Administrator Scott Pruitt by Army and EPA staff (memorandum from USACE to EPA Office of Water dated September 5, 2017). Some areas of the country may experience less loss in jurisdiction but significant parts of the country, especially in the western states, would experience a considerably higher loss of protection than the national average.
A key impetus for Administration's proposed rule is misleading claims by farm organizations that under the 2015 Clean Water Rule, all agricultural operations would be subject to regulation, and that permits would be required for basic farming activities. In fact, the 2015 rule did not change the permit exemptions for normal, ongoing, agricultural and forestry activities, nor did it remove exclusions such as for “prior converted cropland,” which has been explicitly removed from jurisdiction since the Clinton Administration. Moreover, the 2015 rule clarified that ditches are only within Clean Water Act jurisdiction if they flow year-round or were formerly a natural stream channel. Thus, the claim that aerial spraying of pesticides and herbicides over all farmland would require a permit under Section 402 of the Clean Water Act is an exaggeration.
The waters which would be stripped of Clean Water Act protections ultimately flow to the sources of drinking water for millions of Americans. Wetlands that would be excluded from protection are the breeding and nesting grounds for a large portion of the country’s waterfowl. These wetland areas proposed for exclusion also help control the downstream flooding that cities, towns, and rural areas are increasingly experiencing with more frequent extreme weather events.
Clean Water Act Protections and Results – A Look Back
In 1972, overwhelming majorities of both houses of Congress adopted the Clean Water Act. The law recognized that the nation had been unable to stem the pollution which was making many of our rivers, lakes, and estuaries unhealthy with pollution and rendering our aquatic resources dangerous to drink from and lethal to fish, shellfish, and waterfowl. The Act’s authors extended protection which had been limited only to navigable waters to waters of the United States, and urged the newly created EPA and the Corps of Engineers to adopt a broad view of that term. The 1972 Act and subsequent amendments established a partnership under which EPA establishes scientific criteria as a basis for standards established by States and tribes. Permits are required that specify how much any pollution discharged is to be reduced to achieve the standards. Where the pollutants being discharged are dredged or fill material, the Army Corps of Engineers is generally the entity which considers permit requests, under EPA issued guidelines. Dredged and fill material is typically used to create dry land out of wetlands and to alter rivers, streams, lakes and coastlines. If poorly designed, dredge and fill activities can not only destroy wetlands and other aquatic resources, but also destabilize sediment along waterbodies leading to erosion and sediment pollution. Sediment pollution to water resources is one of the leading reasons for impairment of the nation’s waters.
Through the efforts of states, tribes, industry, cities, citizen groups, and farmers, the declining state of our waters, has been reversed and many of them are now returned to health and support tens of thousands of recreational jobs, increased property values, and valuable commercial and recreational fisheries. But even as great progress was being realized in reducing sewage discharges and toxic pollution, wetland losses and stream and shoreline alteration continued at a high rate. In 1989, President George H.W. Bush embraced the recommendation of National Wetlands Policy Forum, a non-partisan group of developers, agricultural organizations, states, and environmental organizations. The Forum recommended that the Nation, which had lost over half of the wetlands present at the time of European colonization, strive to achieve no net loss of these resources in the short run and a gain in wetlands in the long term. Another recommendation was that a single definition of wetlands be used across several agencies playing a role in their characterization and protection.
Mechanisms to Protect the Nation’s Waters
The Clean Water Act provides that pollutants cannot be discharged to “waters of the United States” without the discharger first obtaining a permit. Clean Water permits, typically issued by States on EPA’s behalf, generally require stringent reductions in pollutants to achieve water quality standards which define levels appropriate for various uses such as drinking water supply, body contact recreation, protection of fish and shellfish, etc.
In the case of discharges of dredged or fill material, which are often discharged to ponds and wetlands to convert them for some other use, federal permits are most often issued by the Corps of Engineers, subject to review by EPA. Flowing rivers and stream and large ponds, as well as lakes and estuaries, are relatively easy to identify. Smaller tributaries that flow to these larger water bodies, and some kinds of wetlands which perform valuable flood protection, habitat, and other purposes may be less obvious to the layman but can easily be delineated using the established Corps manual and do not require years of study and enormous expense as the Administration claims. It is important to note that these waters are clearly and scientifically linked through physical, chemical, and biological processes to form a complete system. Discharges of pollutants or filling of upstream waters can have serious consequences for downstream waters and their users.
Waters of the U.S. and Wetlands Delineation
The Administration is characterizing its proposed rule as a return of authority which belongs with the states. But the federal Clean Water Act authority over waters of the U.S/ is limited to preventing their destruction or unregulated pollution. The Clean Water Act exempts “normal agricultural, ongoing, agricultural and silvicultural practices.” In addition, water may be withdrawn for commercial, agricultural and industrial purposes, recreation may be pursued, etc. Pollution in what the Administration might wish to characterize as State (and presumably Tribal) waters will very probably affect the downstream waters which the Trump Administration concedes Congress protected with the Clean Water Act.
Differing methods for delineating wetland boundaries and litigation over this question was one basis for the Wetlands Forum recommendation for more uniformity. The scientific definition of wetlands was and has been relatively stable for many years. They are areas that are regularly saturated and inundated for periods sufficient to cause the establishment of plants adapted for life in wetlands (hydrophytic plants) and as indicated by the presence of “hydric” soils. Following Bush Administration’s adoption of the recommendations of the Forum report, the Corps, EPA, Fish and Wildlife Service and Soil Conservation Services (now NRCS) met and agreed on one field manual. The 1987 Corps Delineation Manual with its Regional Supplements represents the field guidance used by federal agencies to describe hydric soils, field indicators of saturation and inundation, lists of hydrophytic plants, and the amount of degree of dominance of such plants.
The Protective 2015 Rule Responded to a Divided Supreme Court Decision
Even as an ever-larger body of scientific research and human experience has demonstrated the importance of protecting the aquatic health of an entire watershed Federal courts with expertise on legal issues but not science have been asked to answer many questions about which wetlands and waters are protected from unpermitted discharges. One of these cases, the Rapanos litigation, split the Supreme Court 4-1-4. Former Justice Antonin Scalia wrote an opinion with a very limited definition of waters that should be protected. It is this opinion that President Trump indicated should, and apparently has, guided his Administration’s position on waters of the US. In the wake of that case, parties on all sides called on the Corps and EPA to clarify questions about the reach of the Clean Water Act. EPA and the Corps backed by the U.S. Department of Justice initially responded by issuing guidance that the Scalia plurality opinion in combination with an opinion by Justice Kennedy should be used to identify "waters of the U.S." The 2015 Clean Water, or “WOTUS,” rule adopted and further clarified and codified this guidance building on a solid scientific record and extensive public notice and comment.
Where in the landscape wetlands are located is a key element of the Trump proposal. “Isolated” wetlands, such as the many millions of acres of prairie potholes in the upper Midwest, as well as other important wetland areas that are located near free-flowing waterways but don’t “touch” them because of certain landscape features like river levees, would be excluded from protection unless there is a direct connection to a jurisdictional water as defined by the new rule. These potholes, which are quite wet in the Spring, and can produce a robust “crop” of waterfowl, may also produce a corn crop in the Fall. Farming such areas is lawful under the 2015 rule and prior agency practice, notwithstanding alarms sounded by some industrial farming interests. The wetland features along waterways, including in floodplains, that do not have a specific overland connection to a traditionally navigable water, are exactly those features that provide important wildlife habitat, improve water quality, and offer storage of floodwaters during heavy rains.
With Dirty Water Proposal, Vast Areas of Wetlands and Tens of Thousands of Stream Miles Would Be Vulnerable
Under the Trump “dirty water” proposal, such areas of valuable waterfowl habitat could be paved for parking lots or shopping centers or receive discharges of sewage or industrial effluents without Clean Water Act protection or review. Other vulnerable types of wetlands are vernal pools, wet for several weeks in the spring, that are important ecosystems in California, New York, New England, and other regions of the country. The mid-Atlantic region contains relatively rare areas known variously as Carolina Bays, Delaware Bays, Delmarva Potholes, and by other terms. These wetlands, as well as hundreds of thousands of miles of seasonal streams would be stripped of Clean Water Act protections.
The Trump Administration proposal spells trouble for people – for the jobs and property values that depend on clean water, and for the health of Americans who deserve safe sources of drinking water. The definitions proposed by the Administration will jeopardize fish and wildlife that require clean water and the jobs of those who support commercial and recreational fishing and hunting as well as ecotourism activities such as birdwatching.
Suggestions for What to Say
- Explain why clean water is important to you.
- [See points above in the section titled “With Dirty Water Proposal, Vast Areas of Wetlands and Tens of Thousands of Stream Miles Would Be Vulnerable.”]
- Given the profound changes and implications for the future health of the nation’s waters and the Americans who depend on them, there should have been a longer post-publication public comment period and multiple public meetings throughout the nation on this issue. The proposed rule represents a significant and negative change to a bedrock provision of environmental protection law and policy
- Waters that are currently protected under the 2015 Rule as well as waters that have been protected for decades under the federal clean water law will be excluded from protection if the proposal is adopted. The waters that will lose federal protection are connected hydrologically, biologically and chemically to areas that would remain protected but could be polluted by water flowing into them from unprotected areas.
- The 2015 rule that would be replaced was based on an extensive scientific analysis, after a 200-day comment period and hundreds of meetings. No such technical basis justifies this proposal.
- The proposal suggests that the excluded waters would be protected by States or Tribes; however, the Environmental Law Institute has published an analysis that indicates that many states have laws that would prevent them from exercising such protections. Moreover, the economic analysis that accompanies the proposed rule provides an analysis showing that as many as 20 states are expected to reduce to some degree the extent of their regulatory water programs to be more consistent with the proposed federal rule. In addition, while many states do have definitions of regulated waters more extensive than the new proposed federal definition, many do not currently have state dredge and fill programs. Also, many states currently do not have sufficient funding to take over their regulation without raising additional state funds or applying for additional federal grant funds. It is unlikely these would be forthcoming, particularly to protect areas no longer be protected under the Clean Water Act.
- Millions of Americans get their drinking water from sources that could be polluted by discharges into upstream waters that could take place if those waters were stripped of Clean Water Act protection.
- Although the proposal suggests that clarity will result from its adoption, there are no easy ways to distinguish between ephemeral and not relatively permanent streams that are excluded and relatively permanent and perennial streams that are covered. Further, this new terminology could effectively exclude from protection well defined streams that dry up in the summer, and are considered intermittent. In addition, in the West, large numbers of streams are classified as ephemeral (85 % Nevada, 66% in New Mexico, 51% in Arizona according to the Interior Departments US Geological Survey) because they only flow during the spring due to snow melt and rain, but provide significant habitat, filtering and flood hazard reduction functions.
- Agricultural producers don’t need this proposal to continue their farming activities. There are exemptions in the current law for farmers to pursue normal, ongoing agricultural practices and some 60 million acres of wetlands previously converted to croplands are exempted under the 2015 rule and prior practice. Most ditches that travel through farms have historically not been regulated, and the 2015 Clean Water Rule further clarified that.
- Many water bodies have come back from years of pollution and are again biologically productive and safe for recreation. The rate of wetlands losses has declined. With additional effort, the goals of the 1972 Clean Water Act are in reach. This is not the time to return to a past when living or working near a river or lake was a financial liability and a risk to one’s health and when many waterbodies were dead or dying, or when rivers polluted caught on fire.
For additional points to make, see Save EPA's submitted comments at http://saveepaalums.info/submittedcomments .
There Is More That We Can Do
It would be great if well-reasoned, fact-based comments were enough to win the day, but in today's deregulatory environment, raising the political stakes of regulatory rollbacks is crucial to stopping or slowing them down. Submitting comments is a good first step. For rules that are particularly important to you, please consider taking one or more of the following steps, too. These methods can help to mobilize public opinion and spur elected leaders to fight the destructive changes that the Trump Administration is promoting.
Write to your members of Congress and other elected officials. Let them know your concerns and ask them to weigh in on this rollback and speak out publicly in favor EPA’s existing statements on this issue. These links make it easy to write your members of Congress (your representative in the House of Representatives and your two senators). If you're willing to register with Countable, this link --https://www.countable.us/ -- allows you to identify your members of Congress and send a message to all three at once. Or, you can write them separately -- you can use https://whoismyrepresentative.com/ or https://www.usa.gov/elected-officials/ to find your members' email contact forms or snail mail addresses.
Let your state officials know that you are concerned about this issue. Write to your elected leaders, get involved with local activists who are encouraging local or state action.
Voice your concern and encouragement in the media, social media, at local meetings, and at every opportunity. In the absence of federal leadership, it is vitally important that states and local governments fill the void.
Write letters to the editor and even op-eds in your local papers. Letters to the editor should be fairly brief.
Organize or participate in campaigns to make phone calls or write letters to members of Congress and make phone calls to radio stations during call-in days, or take other actions to spread the word.
Inform your local officials about these issues and ask them to make a public statement or submit comments on a proposed rollback if your jurisdiction has a stake in these issues. Bring up these issues at town hall meetings.
Spread the word via social media. Tag your elected officials so they know how you feel.
Join or organize demonstrations.
Talk to your friends, colleagues and neighbors and encourage them to comment and otherwise join in this effort.
For More Information
Clean Water for All Coalition "Take Action" page, with help for public commenters and links to related sites of Clean Water Action, Natural Resources Defense Council, and National Wildlife Federation -- http://protectcleanwater.org/take-action/