Trump’s New Rule Favors Pollution Over US Waterways
Trump's years of dogged attacks on the Clean Water Rule have finally succeeded, and big ag and fossil fuel industries are rejoicing.
Trump's years of dogged attacks on the Clean Water Rule have finally succeeded, and big ag and fossil fuel industries are rejoicing.
KIM BROWN: Welcome to The Real News. I’m Kim Brown.
The real estate developer who happens to be president of the United States has taken the last step to fully eliminate the clean water rule of 2015, also known as the Waters of the United States rule or WOTUS. The green light has been given for big agriculture and land developers to resume dumping pollutants back into areas that gained federal protections under the Obama administration. Farmers, miners, fossil fuel drillers and the like have celebrated this move by Trump, but those invested in protecting our drinking water and habitat for birds and other endangered species fear this latest attack by Trump on the administration could come with devastating effects.
And joining us today to discuss this is Janette Brimmer. Janette is an attorney with Earthjustice. She’s based in Seattle, and Janette works to protect Puget Sound, national parks, wilderness areas and iconic species such as orcas and salmon in the scarce waters of the Pacific Northwest. Janette, we appreciate you joining us today. Thank you.
JANETTE BRIMMER: Thanks for having me.
KIM BROWN: So as I was researching this, I discovered that this issue is a lot more complex and more potentially scary than I thought. But in order to understand what Trump has done, we have to understand what Obama did and why it has a lot to do with the Supreme Court ruling in 2006. Can you explain that to us, Janette?
JANETTE BRIMMER: Sure thing. And in fact, I might take you back even a little bit before that. What we’re talking about is The Clean Water Act, a major federal law from the early 1970s, and what water bodies does the act apply to? That’s really what this is all about. Does it cover everything that’s wet? Does it cover some things? And how do we figure that out? And originally when The Clean Water Act passed, Congress passed it because states had been trying to protect water, but it was all over the place. And they had not been doing a good job and we were still getting water bodies that were highly polluted.
So Congress finally stepped in and said, “This is really a federal problem. The waters belong to everybody. They flow from state to state, they’re interconnected, and we need really a federal solution. We can’t have this patchwork because that’s just not going to work. And we’ve tried it and it didn’t work.” So we got The Clean Water Act. Somewhere in the first 20 years or so of the act, as you can imagine, people who perhaps don’t like being told that they can’t pollute or dig up wetlands or do whatever it is they want to do to water bodies went crazy about this. And there started this kind of attempt to chip away.
And that really found some traction in some Supreme Court cases in the early 2000s, one of which is called the Rapanos case. And I think that’s the one you’re referring to from 2006. And in that case, the Supreme Court really questioned whether we should have a super broad application of clean water protections at a federal level. Now, the thing that’s interesting about that case is it left things open. The court was also all over the place and we didn’t get a five person majority. And that’s crazy. How do you figure that out? And so the Obama administration took that confusion that came out of that and said, “All right. We’ve got to figure out how to apply The Clean Water Act.” And that’s the rule that we got from the Obama administration, which we have called The Clean Water Rule.
KIM BROWN: And there was a lot of misinformation surrounding The Clean Water Rule of 2015. For example, I know there was a parody video done by the Missouri Farm Bureau that showed a canoe and a dry ditch and claimed that the dry ditch now, under this new Clean Water Rule, qualified as a waterway. So explain to us what the Obama administration did. Because it’s not so much that they issued new regulations, it’s that they offered clarity as to what types of waterways would be under federal protection.
JANETTE BRIMMER: That’s exactly what the Obama administration was trying to do with that rule. So if you can think about it as a most obvious to less obvious approach. Most obvious to, I would say, almost anyone would be certain water bodies are going to be protected. Like the great lakes, like the Mississippi and Missouri rivers. Those kinds of water bodies are perhaps the most obvious. But then the rules started to say, “All right. So if we step away from that, how do we figure it out?”
Waters that flow into those waters, perhaps. Rivers that are flowing into the great lakes of the Mississippi River. We can start tracing that because people really understand that’s how water works, right? You put pollutants in, and the headwaters are going to flow down and pollute all the waters below. If you dig up a wetland, that is an important water filtering system or habitat or floodwater protection, right? Because it takes the floodwaters and stores them. That’s going to be something that should be protected.
And then take a step down from that, and there might be some that are less obvious. Those were the hard ones. And what the Obama administration did is it turned to a group of elite scientists, really the best scientists we have in hydrology, biology, geology. All of the things that can affect water bodies and how they work and said, “What about those connections? Where are they connected?” Because the Supreme Court, justice Kennedy had talked about significant nexus, waters and significant nexus. And so, relying on the science, they basically created a recipe in the rule for figuring out what should be protected.
KIM BROWN: And so once this rule was put into place, the Obama administration was hit with lawsuit after lawsuit, and after the election of 2016, one of Donald Trump’s first promises was to get the WOTUS rule repealed and he has been working diligently on that effort ever since he was elected. But I want to play a clip if we could from the acting administrator of the Environmental Protection Agency. They gave a celebratory press conference in January of this year. Let’s take a look.
ANDREW WHEELER: When president Trump took office, he immediately began a process to remove and replace undue regulatory burdens that stifle American innovation and economic development. At the top of the list was the Obama administration’s 2015 waters in the United States definition. Today, EPA and the army corps are proposing a new definition of waters in the United States that puts an end to the previous administration’s power grab.
The three overarching principles that I wanted to ensure in this proposal are: One, the property owners should be able to stand on their property and be able to tell whether or not they have water that is a federal water without having to hire outside professionals. Number two, that we are clearly defining the difference between a federally protected waterway and state protected waterways. And three, that we are providing the certainty the American public needs, and in a manner that will be upheld by the courts. That is why we are closely following the language of The Clean Water Act and the three Supreme Court decisions.
KIM BROWN: Janette, in your opinion… Well, first of all, I’d like to get your reaction to what the acting administrator of the EPA had to say there. But to follow up with that, is the Trump administration adhering closely to The Clean Water Act? The first question though.
JANETTE BRIMMER: No. they are not adhering closely to The Clean Water Act. A simple perusal of the act itself as well as the legislative history behind it, would show that they are in fact significantly narrowing the application of The Clean Water Act and cutting a lot of water bodies out of protection, that have in fact been protected for decades under that law.
KIM BROWN: Also wanted to play another clip, Janette, from Zippy Duvall, who is the president of The American Farm Bureau. And farmers really seem to have an issue… Or let me rephrase: The farming lobby really seem to have a problem with the WOTUS rule implemented by president Obama. But let’s hear from Zippy real quick.
ZIPPY DUVALL: Farmers want to make sure that the water is clean. They want to protect their natural resources. But just like Mr. James says, if you’re a regulator, under this ruling, it was impossible to regulate it. Under this ruling, it was impossible for our farmers to know what they were supposed to do and what they could and couldn’t do. So we welcome the opportunity to get rid of this old rule and take our time and make sure we develop a new rule that gives us clear rules so that we can have clean water.
KIM BROWN: So Janette, for people who are not familiar–like myself–with exactly what farming practices are and how they could possibly pollute the environment or pollute the waterways around them, what is it that the farmers want to do that the WOTUS rule was precluding them from doing, but now the new Trump rule will allow them to do?
JANETTE BRIMMER: Well, let’s start with that assumption that they’re making, that the rules somehow prevented them from doing things. It really didn’t. That’s a fiction, frankly. There might have been a few instances here and there with a wetland that had not already been farm historically, where they may have to get a permit to do something. Like if they wanted to dig you up or dredge or put fill into a wetland. And let’s be clear, that just means they have to get a permit. That doesn’t even mean that they can’t do it. It just means they have to go through a process.
But farming practices do in fact affect waters of the US. It’s just that, for the most part, they have been unregulated. Even under the original Clean Water Act, many farming practices are exempt from the reach of the act and always have been. And that’s what’s so frustrating about the narrative that’s been developed to try to push through what we call these dirty water rules. Many wetlands have been farmed over the years. Those are grandfathered in, so they don’t have to do anything about that.
And so, those wetlands have been destroyed throughout the great plains especially. You’ve got situations where there is runoff from fields. Current farming is quite chemical intensive. There may be manure runoff. And many of those practices, because it is just runoff from the fields when it rains or when there’s snow melt, has not been regulated. They don’t have to get a permit. It’s not considered something that’s regulated under The Clean Water Act. So again, the practices that the farming community may think were covered by the Obama rule, for the most part, I think there are a lot of hyperbole.
KIM BROWN: So Janette, in addition to what the farmers say that they disliked about the WOTUS rule, other industries are celebrating in addition to the farming lobby, including the oil and gas. Mining is a big industry that has been very ecstatic about the Trump decision to change the rule, so to speak. So what are some of these other industries now going to be doing that they were not previously doing? Because again, it’s confusing in the sense that I don’t know what they were doing before, so I don’t know what they are now being allowed to do. But because Trump is in favor of it, I should just assume that it’s bad.
JANETTE BRIMMER: Yeah. Well, I think your assumptions will be borne out. So I think you’re right to call out mining, housing development and not just housing, just real estate development generally, oil and gas. Any kind of larger industrial things. Even some things like wastewater treatment. These are all industries that I think are more directly benefiting from what the Trump administration is setting out to do here, but they make use of the agriculture narrative, right? And that’s not an unusual thing. Let’s talk a little bit about what The Clean Water Act really does. What the Clear Water Act did is it came in and it said, “You can’t do bad things to our waters. You can’t discharge pollution to them through a pipe or a ditch or some conveyance. You can’t go dig them up or don’t fill into them.”
And that’s wetlands, that’s rivers, that’s streams, that’s lakes. And that’s just prohibited. Now, if you think you have to do that, if you think there is some reason that that is necessary, then you go to the government and you get a permit. There’s a permitting system for the discharge of pollutants, which allows us to monitor what the kind of pollutants are, what are the levels. We can set limits. We can impose the latest, greatest technology. Or if you’re on the dig it up and dredge side of things, we can put boundaries on what ones you’re allowed to dig up and dredge. There are mitigation requirements if you’re going to affect a wetland over here, then let’s restore another one over here so that we retain what they call the functions and values that those water bodies give to us on the landscape.
That’s what these guys are targeting. It’s not so much that they couldn’t do their projects in the past, they just had to do them in a way that the public knew about it. We had some rules set on it, and they were subject to some permitting so someone was looking over their shoulder. Now, these destructive activities can occur in many places; especially in the more dry West I think we’re going to see it, or the prairie regions, or Northern regions of the United States. I think we’re going to see that destructive behavior with nobody monitoring it; nobody minding the store. They’re just going to go out and do it. And that’s, I think the big danger of ruling.
KIM BROWN: And that’s what I wanted to ask. I hate to sound like a doomsday-sayer, so to speak, but give us the worst case scenario that we could be looking at–or a potential worst case scenario. Because I feel as if I am understanding exactly or somewhat what’s at stake here.
Here locally in the Baltimore region, obviously, we rely tremendously on the Chesapeake Bay. And for decades, the state of Maryland has been complaining that states north of us, Pennsylvania and New York state have more lax regulations on things such as manure removal from pig farms, specifically in Pennsylvania. And how these things get into the Susko Ohana river, they travel downstream and deposit into the Chesapeake Bay where we have an economy here that really depends on things coming out of the Bay that are healthy and consumable to eat. So I understand it from a local perspective. But give us something that you potentially see that could go really wrong with the repeal of WOTUS.
JANETTE BRIMMER: Sure. There’s a couple of things. One, I think you astutely point out that there’s going to be a drive to the lowest common denominator. In other words, the dirtiest state, particularly if it’s upstream of other states, is going to drive what happens, because now it’s going to be a state to state kind of thing. And you’re going to have to be looking over your shoulder upstream, as it were, to see what’s going on and who’s controlling what. And if that state is all about, “Well, we just like the development because we like the tax space or we like the jobs,” or whatever this narrative might be associated with that, then the downstream states and the downstream citizens are going to bear some of the brunt of that. So that’s a perfect example I think that you gave.
There’s also going to be significant effects with respect to flood retention, because wetlands are potentially one of the targets of this. They are really important on the landscape for flood retention. Houston is a really good example. Remember what happened with Houston in the hurricane? Part of what was going on there is that development had been allowed rampant in the flood plain. In areas that normally when you get big storms that might be infrequent, that water is allowed to spread out, and it doesn’t all get basically into a tinier and tinier tube. Houston is exhibit A of what that looks like. You’re going to see a lot more of that, and that’s just going to be exacerbated with the change in climate patterns that we’re seeing with more rain.
And then I would say, a final example of one of the things that’s buried in this rule that concerns me is that even if, for example, the Army Corps of Engineers or EPA comes in and allows something to happen. Let’s say they say, “We’re going to permit this development or this mine. We’ll permit this mine. You can dig up some stuff and dump it in this little teeny stream over here because it’s tiny and we don’t care about it.” But that stream leads to other waters or maybe it cuts off two bodies of waters. What can happen under this rule is by allowing that, you’ve now cut off everything upstream from being a protected water of the U.S. So you’re going to get this domino effect that’s almost just this terrible, insidious thing in this rule, that you almost have to really drill down and have been doing this for a while to understand that that’s the terrible plan here in some respects.
KIM BROWN: Well, the Trump administration will implement its final version of what they’re calling The Navigable Water Protection Rule, which eliminates The Clean Water Rule of 2015, and Trump’s new mandate is set to go into effect 60 days from relatively now. So late March. So we’ll be keeping an eye on how the Trump administration is handling this and what will be the response from environmental activists such as yourself.
We’ve been speaking with Janette Brimmer. She is a staff attorney from Earthjustice. Go to earthjustice.org and read some of her pieces. Janette has been working on this issue for quite some time. She’s based in Seattle and she works to protect national parks, wilderness areas, and of course, the beloved Puget Sound in the Pacific Northwest. Janette, we certainly appreciate your time today. Thank you.
JANETTE BRIMMER: Thank you so much. It was a pleasure.
KIM BROWN: And thank you for watching The Real News Network.