Trump’s Environmental Protection Agency is moving to scrap the federal clean water rule, a measure that protects drinking water for one third of Americans. They have proposed a “substantive re-evaluation” of which bodies of water should fall under the protection of the federal government. The rule, established by the Obama administration in 2015, was meant to clarify which rivers, lakes, and streams are protected by the landmark 1972 Clean Water Act.
Before the rule, the EPA faced legal barriers to the protection of key waterways. Before the rule was implemented, the agency had estimated that 489 cases had faced obstacles from legal challenges to federal authority on the matter. The nature of watersheds means that failing to protect one waterway can easily affect many more. An estimated 117 million Americans get their drinking water from public systems that draw from headwater, seasonal, or rain-dependent streams. Clear protection from the federal government prevents wastewater discharges into such bodies of water without permits, and calls for steps to be taken by industry and developers to ensure these waters not contaminated by pollution, oil, medical waste, and other harmful substances.
EPA Chief Scott Pruitt explained “We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses.” He said the EPA would restructure clean water regulations in a “thoughtful, transparent and collaborative” manner.
However, the rule already followed a months-long comment period in which the EPA met with hundreds of stakeholders and received millions of comments. Eighty-seven percent of these comments were supportive of the rule. It also followed a report by the EPA which reviewed over 1200 peer-reviewed science publications, confirming that streams and wetlands have a direct effect on other waterways downstream.
The rollback of the rule builds on a 2009 decision by the Supreme Court weighing federal regulation of swear words on television, FCC v. Fox. The court ruled 5 to 4 that an agency, such as the EPA, can change its regulations without the move being considered arbitrary or capricious under the Administrative Procedures Act, as long as it offers a “reasoned explanation” for the changes. The ruling decided that an agency “need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one.”
The new proposal for scrapping the Clean Water Rule fails to mention the in-depth technical report offered by Obama’s EPA. Instead, it cites the FCC v. Fox ruling to avoid a scientific debate over the merits over the legitimacy of the change.
“This is a strategic way for them not to have to argue on the science,” according to former Department of Justice attorney Larry Liebesman.
Though the change may indeed be considered legally acceptable, the problem lies once again in this administration’s deliberate sidelining of scientific consensus. The decision would not be as inherently suspect if not for Scott Pruitt’s, and the administration in general’s, track record of putting the needs of private interests above the greater good when it comes to climate change and environmental concerns. Despite Pruitt’s careful language focusing on limiting federal authority, the move has alarmed environmental advocates.
According to the Sierra Club’s environmental director Michael Brune: “Once again, the Trump administration has agreed to do the bidding of the worst polluters in our country, and once again it’s putting the health of American families and communities at risk. We will fight this and every other attempt by polluters and the Trump administration to destroy our water resources.”
President Trump called for a review of the regulation in an February executive order. He called the rule “one of the worst examples of federal regulation” and a “massive power grab.” He said the order has put thousands of jobs at risk because “the EPA decided that navigable waters can mean nearly every puddle or every ditch on a farmer’s land or anyplace else that they decide.”
In reality, puddles are not discussed by the rule, and there is no evidence that the rule had threatened thousands of jobs. The measure has faced some public opposition from some farmers and golf course operators, but has been widely embraced otherwise. A rollback of clean water regulations is a step in the wrong direction, after a year that saw water crises in Flint, Michigan and beyond. As of last year, only nine states were reporting safe levels of lead in their water supply, according to EPA data obtained by CNBC.
The reversal of the rule will face a period of public comment before a final decision is made. For the sake of the millions of Americans who depend on water from watersheds that are threatened by contaminants. The Trump administration should change course and uphold the rule, and prove that they put the well-being of everyday Americans above the interests of a few opponents and hardliners such as Pruitt.