Legal Battle Staves Off Trump’s Assault on Clean Water Protections

Donald Trump's efforts to strip away protections for rivers and wetlands have run into a tide of legal resistance.

Donald Trump’s efforts to strip away protections for rivers and wetlands
have run into a tide of legal resistance. 
Joe Raedle / Getty Images

By Michelle ChenTruthout
Published September 12, 2018

Since taking office, Donald Trump has waged a relentless attack on the nation’s waterways, but his efforts to strip away protections for rivers and wetlands have run into a tide of legal resistance.

One of Trump’s first environmental policy directives was to choke off the foundational law protecting water bodies and aquatic habitats, the Nixon-era Clean Water Act. The Environmental Protection Agency (EPA), under Trump nominee Scott Pruitt, targeted a keystone amendment to the Clean Water Act developed by the Obama administration, which strengthened the agency’s ability to control and monitor a range of water bodies and pollution sources.

In mid-August, however, a South Carolina District Judge blocked Pruitt’s suspension of the rule in early 2017, validating environmentalists’ claims that the unilateral measure to claw back clean water regulations was undemocratic and illegal.

Known as the Waters of the United States rule, the Obama-era framework strengthened the Clean Water Act by covering more smaller water bodies—namely tributaries and estuaries linked to larger watersheds—to extend the scope of environmental monitoring, contamination standards and reporting requirements on industrial sources like farm waste, mining pollution, power plant toxins, and dirty industries like mining and coal-fired power plants. Though the Obama administration often sought compromise with industry on environmental regulations, the landmark water rule had been the bane of many an industry lobbyist since it was first issued in 2015 because it would have extended the regulatory powers of the EPA — which has traditionally overseen major “navigable waters” like oceans and river systems — to cover minor interlinked water bodies, including mudflats, wetlands and wet meadows and other aquatic environments that feed into the larger network of waterways. Pruitt, a long-time lawyer for fossil-fuel corporations, moved in early 2017 to suspend the Obama administration’s rule and eventually replace it with a weaker policy, sidelining the regulations until 2020.

As he began his term with a spate of anti-regulatory directives and pushed agencies to systematically unravel Obama’s environmental policies, Trump branded Waters of the United States a “horrible, horrible rule.” The dismantling of the rule would have greased the path for mining, agriculture and energy industry giants to undermine and circumvent the original version of the Clean Water Act, which left many streams and small estuaries exempt from federal oversight.

The court ruling has, for now, staved off the rollback. But Tim Wheeler, Pruitt’s successor as EPA chief (following his resignation amid corruption scandals earlier this year), seems just as committed to gutting the Clean Water Act as part of the administration’s broader anti-regulatory crusade, which is also targeting air pollution and climate change policies under the Clean Air Act.

The Southern District court decision focused not on the substance of the regulations themselves, but on the procedure by which the White House rammed the sweeping measure through the rulemaking process. Judge David Norton wrote that Trump’s suspension of the rules violated federal protocol by not allowing “meaningful opportunity” for public review. And while it was possible for agencies to reverse their policies over time, “the type of administrative evasiveness that the agencies demonstrated in implementing the Suspension Rule would allow government to become ‘a matter of the whim and caprice of the bureaucracy.’”There’s no doubt that both Congress and the White House will persist in their efforts to obliterate environmental protections.

To environmentalists, the Trump administration’s “whim and caprice” isn’t just a procedural lapse but a crime against nature. The broad coalition of environmental groups driving the legal challenge warned that sidelining or replacing the Waters of the United States rule, which would cover tens of millions across the US and protect some 117 million nationwide, would jeopardize the drinking water of many communities and set a dangerous precedent for overriding science and public health interests by boosting dirty industries at the expense of threatened ecosystems.

Following the ruling, the Southern Environmental Law Center, which led the litigation, hailed the decision as proof that “agencies failed at their most basic responsibilities: evaluating the effect of their reckless actions and allowing the public to comment on their decision to eliminate scientifically backed protections for rivers, lakes, streams, and wetlands.”

Since the decision covers only 26 states — due to other parallel court challenges pending in other courts — it’s not a full reversal, but it will, for now, stave off further efforts to weaken water protections on the federal level, and preserve protections for drinking water for about 20 million people. Advocates say it is unclear whether the case could ultimately reach the Supreme Court. But in the current political climate, with a possible confirmation of far-right Supreme Court nominee Brett Kavanaugh, federal clean water protections are increasingly insecure, particularly as Trump moves to slash funding and staffing levels at the EPA.

The Trump administration originally argued that, in expanding the definition of “navigable waters,” the Waters of the United States rule would “give bureaucrats carte blanche to swoop in and penalize landowners every time a cow walks through a ditch.” In reality, environmentalists argued, the rule is designed to cover smaller estuaries and tributaries that form a “significant nexus” with core water systems. These related water bodies have interlinked impacts on water supplies and wildlife — whether in the form of ponds in golf courses, or streams that run dry for part of the year.

Walter Shapley, director of the Water Quality Program at the New York-based environmental organization Riverkeeper, says, “what this is fundamentally about is really recognizing that the waters of the US are connected…. We need to protect the small wetlands and small streams to have healthy waters downstream.” For example, along New York’s Hudson River, dozens of municipal sewage treatment plants require regulation. Yet similar pollution sources surround more than one hundred such plants that are embedded along smaller waters that feed into the central river system. “If we don’t protect the waters that are flowing into [the estuary], we’re not really protecting the Hudson.”State-level policies may be the last bulwark against the administration’s crusade to steamroll science and fuel polluting industries.

Meanwhile, House Republicans have pushed legislation to directly reverse the Waters of the United States rule by explicitly excluding the new waterways the rule would have encompassed. This, in turn, would undermine the rule’s essential purpose: to streamline water protections by setting comprehensive national standards, rather than rely on uncoordinated piecemeal state rules, and instead treat the nation’s watersheds as an integrated network of habitats.

At the heart of the rule is the concept that while smaller waterways and surrounding lands may be geographically detached from larger waterways, they are nonetheless physically and biologically meshed and share codependent ecosystems. Although the Waters of the United States rule technically expanded the Clean Water Act’s coverage by just about 3 to 5 percent, researchers projected immeasurable impacts when safeguarding watersheds holistically against global warming and industrial expansion.

The business groups challenging the Waters of the United States rule, including National Manufacturer’s Association, National Corn Growers Association, and National Mining Association, were not pleased about suddenly being held accountable for smaller water bodies that they had long exploited as dumping grounds. They assailed the water rule as federal overreach that would pose intolerable bureaucratic and economic burdens on businesses and farms. But according to Geoff Gisler, senior attorney at the Southern Environmental Law Center:

The rule actually clarifies exemptions for ditches and agricultural uses…. For businesses more broadly, deregulation is a critical threat. Nobody benefits from more polluted water, whether the business is a manufacturing facility, restaurant, or brewery. It’s far easier to control pollution at the source, holding the polluter accountable, than it is for every downstream user to attempt to remove that pollution.

In previous litigation concerning the Waters of the United States rule, the EPA’s own data analysis showed that under the industry’s weaker version of the regulations, the Clean Water Act would have abandoned protections for up to 60 percent of waters and wetlands nationwide, creating massive impairment of drinking water supplies, fisheries and local economies from pollution sources such as urban wastewater and mercury from power plants, according to an analysis of EPA data by the watchdog group Public Employees for Environmental Responsibility.

Meanwhile, the cost of doing nothing is abundantly clear. Public Employees for Environmental Responsibility points out that roughly 70 percent of the Eastern coastline’s waters and about 80 percent of bays and estuaries are officially considered “impaired” — covering a total area “about the size of Ohio.” A stunning 90 percent of Eastern and Western coastline waterways are impaired. And since 2012, “indices of marine water quality have declined significantly…with more than double-digit percentage increases in impairment” in the main monitoring categories, ranging from pathogens to pesticides to algal growths (the source of the infamous “red tides” and dead zones, which have been linked to devastating fish kills). Just before the district court reversed the suspension of the water rule, Florida’s coast was bludgeoned by one of the worst algal blooms ever, leaving a fetid swath of the Gulf Coast strewn with the corpses of dolphins and turtles.

All these hazards spurred the Obama administration to significantly enhance the Clean Water Act in view of emerging crises on the horizon, including climate-induced damage to watersheds and aquatic ecosystems. Throughout Obama’s tenure, environmental groups criticized his support for energy extraction projects that could harm waterways, such as fracking and offshore drilling. However, the Waters of the United States rule emerged along with several key programs to promote climate adaptation and mitigation initiatives under the Clean Water Act. These included assessing climate stress in San Francisco’s estuary to conserve salt marshes and sea birds, or working with governments and coastal communities around San Juan Bay in Puerto Rico to assist planning for future extreme weather events. (That imperative became all too clear in the wake of the most traumatic environmental debacle of the Trump administration — the failed response to Hurricane Maria, which has left the island’s infrastructure and coastal environment devastated and even more exposed to future climate disasters.)

According to Jennifer Peters, director of Water Programs at Clean Water Watch, the warming oceans, and resulting toxic explosions such as algal blooms, reflect “a huge connection to climate change.” The last administration’s stronger clean water protections helped prevent depletion of streams and wetlands, which help process and absorb pollutants. With those protections forming a natural bulwark against coastal catastrophes from fish kills to flood damage, Peters adds, “it’s really important to be protecting all that natural water infrastructure…. Climate change just makes it even more urgent that we’re not destroying more of our wetlands and streams across the country.”

Those additional protections granted under the last administration may soon dry up under Trump, but restoring the Waters of the United States rule is a critical avenue for future conservation and remediation. Although states sometimes do enact stronger protections than the Clean Water Act’s standards, advocates warn that state lawmakers are often even more vulnerable to massively polluting industries, because their regional economies depend on them, ranging from coal mines in Appalachia to the midwest’s fracking boomtowns.

“Unfortunately a lot of states have been really seduced by industries that want to come in and exploit their resources,” Peters notes. To ensure regulatory efficiency and integrity across regional waterways, “it’s so important to have a basic federal floor…water crosses state lines.” The need for strong national regulatory systems also underscores the imperative of an open public process for rulemaking, ensuring at least some public accountability as Trump wields the executive axe against vulnerable natural resources.

However, Washington now faces a rising tide of corporate influence under Trump. Despite the legal victory on the Waters of the United States rule, there’s no doubt that both Congress and the White House will persist in their efforts to obliterate environmental protections. Although Congress has so far broadly preserved funding and staved off Trump’s efforts to hollow out environmental programs, Shapley says, “with every Trump budget…it’s first on his list: to reduce the staffing and funding for the EPA.” In future years, he adds, state-level policies may be the last bulwark against the administration’s crusade to steamroll science and fuel polluting industries: “the threat of Trump is a call to arms to all states to protect themselves with their own laws and not let the federal rollback be a death sentence for their environment.”