What’s New in Clean Water

In the 49-year history of the Clean Water Act, no federal administration has done more to weaken that law and allow increased water pollution than the Trump administration. That ugly period left behind a series of pro-polluter rollbacks which hobbled effective enforcement of the law. And this dirty water legacy didn’t just disappear on January 20^th. Instead, the Biden administration needed to take action to reverse the Trump carnage. This post checks in on how that’s going. To summarize, the Biden administration has a long way to go and is not acting as assertively as it needs to.

To be sure, there have been a couple excellent pieces of news, starting with the recent announcement that EPA will restart the process of establishing permanent protections for the Bristol Bay watershed in Alaska. Similarly, EPA rescinded a policy statement from the Trump administration which made it easier for polluters to escape scrutiny by dumping their waste into groundwater and which largely ignored a Supreme Court decision directly rejecting the Trump EPA’s attempt to entirely shield these polluters from important pollution controls.

Beyond these items, however, the agencies that implement the Clean Water Act—namely, the Environmental Protection Agency and the Army Corps of Engineers—have either failed to address critical issues or have only announced plans to do so on an undefined timeline.

That’s too bad, because things really started out swimmingly, if you’ll pardon the pun. On his first day in office, President Biden issued an executive order directing agencies to review the environmental rules issued by the prior administration, specifically identifying roughly 100 that had to be reviewed, and telling his administration to revise or repeal the Trump rules as needed to conform them to the law and to several critical environmental objectives he laid out. Agencies were supposed to have completed that review by late April, so we were hopeful that restorative actions would be initiated soon thereafter. Unfortunately, we are mostly still waiting…

Let’s look at a few important issues in the clean water arena.

Ending Trump’s Dirty Water Rule

Wetlands, headwater and impermanently-flowing streams, and other waters provide enormous critical ecosystem “services” which improve communities’ drinking water supplies, prevent flooding, filter out pollution that can cause downstream harms like massive—sometimes toxic—algae outbreaks, and act as habitat for countless aquatic species. One recent analysis estimated the global value of wetlands’ ecosystem benefits at 47 trillion-with-a-T dollars every year. These headwater features also supply much of the water, nutrients, and organic material for the larger watersheds in which they are located. As my Massachusetts family might say, they’re wicked important.

Because these water bodies serve such a critical role, the single worst thing the prior administration did on surface water issues was to decide that huge swaths of them don’t deserve protection under the Clean Water Act. They accomplished this by a regulation many of us called the “Dirty Water Rule,” because declaring waters to be outside of the Clean Water Act’s suite of protective programs means that they’re more vulnerable to oil spills, contamination with sewage sludge, and outright burial and destruction. The Dirty Water Rule discarded protection for more than half of the country’s wetlands (to the tune of tens of millions of acres) and millions of miles of streams that flow in response to rain.

NRDC and our partners examined decisions the Army Corps made in reliance on the Dirty Water Rule, showing that thousands of waters had been denied protection since the rule took effect in June 2020 and highlighted a handful of particularly troubling ones. These examples included five decisions that each denied protection for more than 100 acres of wetlands and three decisions that excluded nearly 400 streams. Following this prompting, the Biden administration itself looked at how the rule was playing out in the real world and concluded that it was “leading to significant environmental degradation,” and “significantly reducing clean water protections.” The agencies acknowledged that roughly three-quarters of the decisions made using the rule had found the waters in question to be unprotected.

Despite this admission—that the Trump administration had gutted the nation’s best defense against water pollution and it was causing ongoing substantial harm—EPA and the Corps failed to act with the urgency the moment demanded. They instead announced plans to propose repealing the Trump rule at some undefined time in the future but to leave it in place while they worked on the repeal.

Fortunately, the agencies weren’t the only ones with a say in the matter. Numerous clean water champions, ranging from states to Tribal nations to conservation groups, had challenged the Dirty Water Rule in court and we continued to press to have it struck down. In a pair of cases, one brought by several Tribes in Arizona and one brought by the Navajo Nation in New Mexico, the courts invalidated the Trump Dirty Water Rule. The agencies responded to the court decision by announcing that they would follow it “until further notice,” but they need to be more proactive. The administration should commit to implement the Clean Water Act framework that was in place prior to the Dirty Water Rule until it develops a permanent replacement rule and it should work expeditiously to propose and finalize such a replacement that’s based on science and the promise of the Clean Water Act to restore and maintain the nation’s waters.

Stopping Destructive Fast-Track Fill Projects

To protect waters from unnecessary destruction and to ensure that harm to waters that are filled in as part of development activity or for other industrial reasons, the Clean Water Act requires any person that plans to discharge solid material into the nation’s waters to get a permit before doing so. Typically, such permits come from the U.S. Army Corps of Engineers, which implements this part of the law, with oversight from EPA. The permitting process, in general, requires the Army Corps to: ensure project proponents avoid and minimize discharges into waters if possible; take particular care regarding “special aquatic sites” like wetlands; follow a set of environmental guidelines the Army Corps and EPA jointly developed; compensate for the harm caused to aquatic resources (for instance, by ensuring the establishment, restoration, or preservation of similar resources elsewhere in the watershed); and reject permits if they are not in the public interest.

Many activities, however, do not undergo a close, site-specific review. In fact, almost all fill permits (north of 95%) are fast-track “general” permits, which pre-authorize discharges associated with dozens of different activities. Under the Clean Water Act, such permits are supposed to be used only for minimally harmful activities, but the Army Corps has long ignored that requirement. In the final week of the Trump administration, the Army Corps issued a group of 16 “nationwide” general permits that made an irresponsibly run program even worse, including one permit that enables massive oil and gas pipelines to threaten hundreds of water bodies at a time. The Army Corps also proposed 40 other nationwide permits, many of which also would greenlight harms to waterways that the Clean Water Act prohibits. Collectively, these permits would authorize developers, fossil fuel companies, and industrial fish, shellfish, and seaweed farms to pollute or destroy many water bodies without adequate protections for the environment.

The Biden administration has done nothing to correct the abuses in, and the harms resulting from, the nationwide permit program. Instead, despite the President’s order to review such actions, the administration allowed the 16 Trump-issued permits to take effect and is planning to finalize the remaining 40 that the Trump administration proposed. The Army Corps should take a hard look at the program, engage with affected communities, and substantially change course, so that the only nationwide permits available are for activities that are guaranteed not to cause more than minimal harm.

Restoring the Role of States and Tribal Nations in Protecting Clean Water

To honor its commitment to Tribal Nations and promote state and local solutions, the Biden administration should also undo a regulatory action the Trump EPA took to undermine the authority of states and Tribes to prevent federally-permitted projects from harming their waters.

When a project—like a hydroelectric dam, an oil or gas pipeline, or a development or dumping project that fills in a waterway—needs a permit from a federal agency, section 401 of the Clean Water Act authorizes state or tribal water agencies to stop the project or impose conditions on it to ensure healthy water quality, aquatic habitat, or other important values. Numerous states rely on this authority to regulate activities that fill in wetlands and to impose requirements to mitigate their impacts.

However, the Trump EPA issued a regulation that eviscerated this important requirement by severely curtailing the longstanding and broad rights that states and Tribes have to consider a range of impacts on their waters. Specifically, the regulation frustrates effective management by states and Tribes both procedurally (by shortening the time that resource-strapped states and Tribes can act and limiting their ability to obtain needed information) and substantively (by preventing states and Tribes from examining the full impacts of a project and effectively eliminating states’ and Tribes’ rights under the Act to condition permits on compliance with “other appropriate requirements of state law,” like minimum instream flows to protect salmon and other native fish and wildlife below hydropower dams).

The Trump rule’s restrictions on their authority prompted 20 states to sue. Similarly, Tribes overwhelmingly opposed the rule and sued EPA when the agency finalized it over their objections. In part because of states’ and Tribes’ staunch advocacy, the Biden administration recently announced that it plans to revise the rule. That’s a start—but only just that; EPA has not provided any timeline for action, much less committed to undoing the provisions of the bad rule. EPA can and must repeal the Trump rule so that states and Tribes once again can take a leading role in the conservation of their wetlands and other waters.

Reining in Toxic Wastewater from Power Plants

Power plants, especially those burning coal that leaves behind a toxic mess of pollution, are the biggest category of toxic water polluters, responsible for 30 percent of all toxic pollution from industrial sources discharged into the nation’s waters.

Following a 2015 Obama-era regulation that set the first-ever discharge standards for a slate of toxic pollutants, the Trump EPA first delayed, then weakened, the standards for two major waste streams at power plants: scrubber sludge (which is created when air pollution controls remove pollutants from their smokestack emissions) and bottom ash transport water (which is used to move combustion byproducts out of the plant’s furnace). By undermining these standards, the Trump administration’s rule would expose millions of people to a toxic brew of mercury, arsenic, lead, and selenium—pollutants that can cause neurological disorders and cardiovascular disease and increase the risk of cancer.

Like other issues discussed in this post, the Biden administration has announced an intent to revisit the decision the Trump administration made, but hasn’t done much more. Instead, it has merely stated that it plans to propose changes to the rule sometime in the fall of 2022, with no commitment to a final action. In the meantime, the agency intends to keep Trump’s rule in place. EPA should commit to an expeditious timeline for revising the effluent limits for these dangerous waste streams based on the best available controls and should commit to complying with the Endangered Species Act, which the Trump administration failed to do.

Controlling Spills of Hazardous Substances

The Clean Water Act has for decades required EPA to develop a suite of regulatory protections aimed at preventing, responding to, and informing the public about, spills from facilities storing hazardous substances. Many of these facilities threaten frontline communities and further endanger people of color who already bear disproportionate environmental risks.

Unfortunately, EPA long ignored these requirements, leaving communities unaware and at risk. In the past several years, the Environmental Justice Health Alliance for Chemical Policy Reform, People Concerned About Chemical Safety, Clean Water Action, and NRDC worked together and sued EPA to compel the agency to address these dangerous facilities.

During the Trump administration, even though the agency previously agreed to propose required spill prevention, control, and countermeasure regulations for over 350 hazardous chemicals stored at tens of thousands of industrial facilities across the country, EPA reneged on its commitment and ignored the law to announce it was doing nothing. The Biden administration has not reconsidered this refusal to act, but it ought to do so, and quick.

Likewise, the administration needs to get to work on rules that set out spill-prevention and response planning requirements for the most high-hazard facilities, ones which, because of their proximity to water, pose a serious threat to human health and the environment. Facility plans need to address historic environmental injustice and ensure that long-neglected communities do not bear greater risks of these worst-case spills. In addition, plans must account for the cumulative risks of other facilities that could have spills, along with other environmental threats. And, in assessing risk, plans must account for releases caused or exacerbated by climate change.

Is That All?

The Biden administration is in a challenging position—having to clean up a horrendous mess created by the Trump administration while also needing to strengthen safeguards to address the fact that the country is still a long way off from the promises Congress made in adopting the Clean Water Act. NRDC and our partners are eager to work with the administration to make this progress happen. But we also won’t hesitate to hold decision-makers accountable and, right now, they need to get moving on clean water.