Background

The 2015 Clean Water Rule outlined which bodies of water would be automatically protected by the Clean Water Act. Large bodies like lakes and rivers were listed, but the rule also included streams, ponds and other, smaller features that have important effects on these bigger, “navigable” waterways.

Thanks to this rule, the Clean Water Act’s oil spill prevention program, its industrial discharge control program, its polluted water cleanup program, and many more safeguards, would apply to these smaller bodies of water. Protecting these features was critical to ensuring the health of downstream waters, and the well-being of people, habitats, species and industries that depend on them.

The rule received criticism from industries long opposed to the effective enforcement of the Clean Water Act. The rule is now tied up in court, as businesses and agricultural groups argue that it is an example of federal overreach and a threat to industry.

President Trump and his EPA Administrator, Scott Pruitt, have vowed to eliminate the Clean Water Rule. The President recently signed an Executive Order directing the Environmental Protection Agency and the U.S. Army Corps of Engineers to review the 2015 rule. In doing so, President Trump began the process to repeal and replace the current rule.

The EPA plans to repeal and replace the Clean Water Rule with two separate rulemaking processes. The tactics are to repeal the Clean Water Rule, then create a new rule that would roll back clean water safeguards for wetlands and streams. Administrator Pruitt recently said he hopes to finish both rules by the end of 2017 or early 2018.

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.

What is the Clean Water Rule and Why is it Important? 

The Environmental Protection Agency (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.

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 apply. 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 (including the Chesapeake Bay TMDL);

• Industrial and commercial developers ordinarily must obtain approval before discharging solid material into protected waters, altering wetlands and degrading lakes and streams; and these dischargers 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.

How Does the Current Administration Propose to Weaken Protections?

In February, the President 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 course of action 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.

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 proposed clean water rollback plan ignores the scientific evidence demonstrating how water bodies influence downstream water quality and water flows.

Stay Tuned for more information and to learn how you can help protect the #CleanWaterRule