Attorney Janette Brimmer explains how polluter-friendly states are helping Trump attack the Clean Water Rule.
Since this article was originally published, Colorado, New Mexico, Michigan, and Wisconsin have recognized that a majority of Americans support clean water protections and dropped their opposition to the Clean Water Rule. As of Jul. 29, 2019, twenty-seven states still support the Trump administration’s plan to make America’s waters dirty again, and we will continue to push back against them. The administration announced the Dirty Water Rule on Jan. 23, 2020.
The Trump administration is proposing to roll back protections for our nation’s waters — protections that constitute our most successful efforts to clean up and protect our natural resources. Trump’s proposed Dirty Water Rule follows his orders to the EPA to eliminate Clean Water Act protections for thousands of waterbodies across the nation. Those protections include rules against dumping pollutants into waters and wetlands and protections against ripping up or filling in water and wetlands for mining, or for large-scale industrial agriculture, or for developments like condos or shopping malls. This gutting of the Clean Water Act is contrary to science and contrary to law. But it fulfills the wildest dreams of industry and developers and, strangely, of many states.
The Clean Water Act passed both the House and Senate with a robust bipartisan vote after decades of Congress trying unsuccessfully to get the states to clean up pollution in our waterways. Congress threw hundreds of millions of dollars of incentive funding at the problem in a desperate effort to coax states to clean up and protect our waters through voluntary measures. Those efforts failed miserably. Rivers were aflame with the toxic stew dumped into them by cities and industries. In fact, Lake Erie was declared “dead” from a noxious mix of those same industrial chemicals, not to mention stormwater runoff from cities, towns, and roads; agricultural chemicals and manure running off the land; and inadequately treated sewage from homes and businesses. Simply put, voluntary measures designed to entice states were not up to the task. With mounting public demand, Congress passed the Clean Water Act, still one of the most popular and effective environmental laws our nation has ever had.
Despite the fact that a majority of Americans consistently support strong clean water protections, the president and 27 states known for weak water protections — the “Not So Great 27” — have eagerly bowed to and now enable polluters in attacking and obstructing the Clean Water Act. Earlier this year, the administration held its one and only hearing on its dangerous Dirty Water Rule in Kansas City — squarely and purposely in the middle of “Not So Great 27” country. The public spoke loudly and clearly in favor of cleaner water at the polls last year, yet the Trump administration’s proposed rule will put waters at risk. That is true not just for the thousands of waters and wetlands the rule proposes to axe from Clean Water Act protections, but also for every waterbody that is downstream from or connected to those waters. The saying “we all live downstream” has never been truer. The Trump Dirty Water Rule puts all of our waters at risk by cutting protections for wetlands, tributaries, and source waters.
The proposed rule is completely divorced from the established science of water resources. In 2014 and 2015, a panel of the most distinguished and knowledgeable scientists who study water and wetlands advised the EPA at length on a rule that would apply the Clean Water Act to ensure broad and consistent protections of all the nation’s water resources, based on the science showing the downstream connections between waters and the landscapes. Trump’s Dirty Water Rule ignores that science in favor of fulfilling the hopes and dreams of polluters and resource-exploiters like coal, oil, and gas; hard rock mining; developers; big-ag and feedlots; and their dirty-state handmaidens. The Trump administration argues — in an echo of dirty industry and the “Not So Great 27′ — that states, not the federal government, should be allowed to control pollution and destruction of waters within their borders without regard to the Clean Water Act. They claim they can do a better job, but this is just back to the future: Make America’s waters burn again.
What industry and the 27 want, and what they get out of the Dirty Water Rule, is the right to pollute and degrade many, many more waters and wetlands than they can now; to remove the protections of the Clean Water Act from as many waterways within their states as they can. There is simply no other explanation. That’s true for two reasons that Trump and the 27 don’t tell you.
First, the Clean Water Act already gives states a role to play. It gives states the ability and obligations to develop their own water quality standards that protect all uses of water — including drinking, swimming, boating, fishing, wildlife and commerce — and to get a first crack at writing and enforcing permit requirements for companies that could pollute a state’s waters. In fact, the Clean Water Act allows and even encourages states to be more protective than the Clean Water Act minimum requirements. Therefore, the only reason the 27 want to push waters out of the Clean Water Act is so that they can allow more pollution and degradation.
Second, most states are less protective than the Clean Water Act — and appear to show no intention of changing. Their claims that states just want to regulate their own waters have no foundation in the actual laws in those states. If a waterbody or wetland is stripped of Clean Water Act protection as Trump and the 27 states want in this Dirty Water Rule, then those waters will have NO protection from pollution, damage, or destruction, from the state or federal government. Period. Seven states actually forbid state regulators from doing more than the Clean Water Act minimums. Nineteen more states come close to that by making it very difficult to near impossible to be more protective. Twenty-nine states have no permitting requirements for isolated wetlands, meaning those wetlands will be fair game for mining, for development, for farming, for pollution discharges with no government oversight. Thirty-two states don’t even have wetland monitoring or assessment programs — they won’t even know who is destroying what or for what reasons, and because Trump and the 27 will strip them of Clean Water Act protections, the EPA won’t either. And Trump admits that these states are free to weaken their own programs even further.
Oklahoma, in a filing in court, recently revealed exactly what the Not So Great 27’s goals are. Oklahoma complained to the court that if many waterbodies — small streams and wetlands and ponds — in Oklahoma continue to be protected under the Clean Water Act, then Oklahoma will have to regulate and control industries that want to dump pollutants into those waters or that want to dig up and destroy those waters and that Oklahoma will have to set and enforce standards of cleanliness for those waters. Oklahoma made clear that it does not want to apply those Clean Water Act protections to those waters. Oklahoma further told the court that it would rather have those waters under state, not Clean Water Act jurisdiction so that the state isn’t “burdened” with those federal clean water protections and obligations. Plainly, with these forthright assertions, Oklahoma will not protect those waters under state laws.
Earthjustice wholly rejects both their goal and their flimsy excuses and arguments for the goal. The Clean Water Act is one of the best ideas to come from Congress and it benefits every person in this country. The federal EPA and the Army Corps of Engineers both play a role in making sure the Clean Water Act delivers on that promise and they took up that role at the direction of Congress precisely because the states had failed repeatedly to protect our most precious natural resource.
And people across the country aren’t fooled — we know that bad stuff flows downstream. We care about drinking water contamination and rising costs of drinking water treatment across the nation. We care about the slime-clogged waterways of Florida and the pollution-fueled toxic red algae tides that kill fish and wildlife by the millions. We care about the stunning arrays of ducks in prairie wetlands that provide critical flood storage throughout the Midwest and Great Plains. We care about Lake Erie’s continued contamination with algae fed by runoff pollution. We care about disappearing desert washes that are critical to wildlife in Arizona and New Mexico and that feed precious desert rivers. We care about the oxygen-deprived dead zone in the Gulf of Mexico that is inundated with fertilizers and manure runoff from throughout the Mississippi River basin. We care about boreal peatlands and northern Midwestern rivers and streams that feed the Great Lakes, but that are on the chopping block of open-pit mine proposals. In sum, we care about protecting our waters and wetlands and keeping contaminants out of our waters so we can drink, fish, swim, and boat on our waters and all waters downstream.
Earthjustice will continue to push back on the Trump administration, polluting industries, the “Not So Great 27,” and their plans to make America’s waters dirty again. Tell your elected officials that you don’t want your state to be part of the 27 and that you support the broadest clean water protections under the Clean Water Act.
A senior attorney based in Seattle, Janette works to protect Puget Sound, national parks and wilderness areas, iconic species such as orcas and salmon, and the scarce waters of the Northwest.
Established in 1987, Earthjustice's Northwest Regional Office has been at the forefront of many of the most significant legal decisions safeguarding the Pacific Northwest’s imperiled species, ancient forests, and waterways.