The Environmental Protection Agency and the Army Corps of Engineers are moving forward with plans to repeal the Clean Water Rule, an Obama-era water pollution regulation that’s long been on the Trump Administration’s chopping block.

The Obama Administration signed the Clean Water Rule in 2015, extending existing pollution protections of larger bodies of water under the Clean Water Act of 1972 to include all “navigable waters,” including smaller bodies such as rivers, streams, and wetlands. Opponents of the rule included farmers who claimed it infringed on their property rights. President Donald Trump signed an executive order in February to review that rule.

“It is in the national interest to ensure that that the Nation’s navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing, regulatory uncertainty, and showing due regard for the roles of the Congress and the States under the Constitution,” the order read.

The Clean Water Rule provides for the protection of about 60 percent of the nation’s bodies of water. EPA Administrator Scott Pruitt said by rescinding the rule, the government will restore power to states, farmers, and businesses.

“We are taking significant action to return power to the states and provide regulatory certainty to our nation’s farmers and businesses,” Pruitt said in the EPA’s announcement. “This is the first step in the two-step process to redefine ‘waters of the U.S.’ and we are committed to moving through this re-evaluation to quickly provide regulatory certainty, in a way that is thoughtful, transparent and collaborative with other agencies and the public.”

Pruitt released a proposal Tuesday that would rescind the Clean Water Rule and revert regulations to the language in the Clean Water Act prior to the 2015 definition of “waters of the United States” or WOTUS.

Environmentalists opposed the Trump Administration’s rescission of the rule. Without regulations, they said, the nation’s water would be threatened by pollution. John Rumpler, senior attorney and clean water program director at Environment America, spoke out against the EPA proposal.

“Repealing the Clean Water Rule turns the mission of the EPA on its head: Instead of safeguarding our drinking water, Scott Pruitt is proposing to stop protecting drinking water sources for 1 in 3 Americans,” Rumpler said. “It defies common sense, sound science, and the will of the American people.”

Clean Water Action President and CEO Bob Wendelgass also released a statement, saying that the only people who stand to gain from the Clean Water Rule repeal are special interest groups.

“The Clean Water Rule is essential to public health,” Wendelgass said. “It is vital to communities that rely on healthy wetlands and streams to power small businesses and provide drinking water. We’re not going to protect clean water by ignoring science and common sense. Americans understand that–yet President Trump and Scott Pruitt don’t seem to.”

Marcus Dieterle

Marcus is an editorial intern at Law Street. He is a rising senior at Towson University where he is double majoring in mass communication (with a concentration in journalism and new media) and political science. When he isn’t in the newsroom, you can probably find him reading on the train, practicing his Portuguese, or eating too much pasta. Contact Marcus at Staff@LawStreetMedia.com.

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Soon after President Donald Trump was sworn in, he signed a directive that said for each new regulation, two Obama-era regulations would be revoked; a reverse two-for-one. In his first month and a half as president, Trump and his cabinet have worked at an unprecedented clip to reverse the Obama Administration’s rules. Trump has frozen, suspended, or terminated roughly 90 regulations put in place under Obama, many as a response to opposition from industry leaders and advocates. Here are five rules that Trump has worked to scrap. 

Lead on Federal Lands

As President Barack Obama was leaving office, he issued an order to ban hunters from using lead bullets and anglers from using lead tackle when hunting and fishing on federal lands. The order was designed to protect wildlife from lead poisoning. Days after Trump’s swearing in, the National Rifle Association (NRA) issued a press release, which said the lead ammunition ban imposed a “considerable financial hardship” on hunters and anglers “by forcing them to use more expensive alternatives.” On March 2, Ryan Zinke, the freshly confirmed Secretary of the Interior, revoked Obama’s order.

Consumer Protection

In January, major communications companies–Verizon, Comcast, AT&T, and others–signed a petition against an Obama-era rule that required “reasonable measures” to protect consumers’ personal information–Social Security numbers, browsing history, and more– from being stolen by hackers or other actors. The rule would have a “potentially deleterious impact on consumers, competition, and innovation,” the companies wrote. Last week, the Federal Communications Commission issued a stay on the rule.

Clean Water Rule

In the waning days of Obama’s tenure, the Environmental Protection Agency and the Army Corps of Engineers broadened the scope of water sources in the U.S. that are to be protected and regulated. The California Farm Bureau Federation responded that the rule would prove “economically harmful for California agriculture.” The group wrote: “In order to comply with the regulation, farmers and ranchers will become increasingly reliant on attorneys and consultants, making farming the land more difficult and costly.” Last week, Trump issued an executive order to review the law, and to begin the process of rolling it back.

Gun Control

Under an Obama-era regulation, people on disability insurance and Supplementary Security Income would be barred from purchasing guns. The Social Security Administration would be forced to give the personal information of people who qualified as “mentally disabled” to the Department of Justice. This rule was equally opposed by two wildly different groups: the NRA and the American Civil Liberties Union. Both groups said that it broadly paints all people with mental disorders as potentially violent, and therefore unfit to own a gun.

In December, soon after Obama enacted the rule, the NRA issued a statement that said the rule “would stigmatize the entire category of beneficiaries subject to reporting.” Last week, Congress repealed the rule, and Trump signed the repeal.

Emissions Standards

On January 12, the Obama Administration issued an order dictating emissions standards and miles per gallon requirements for automobiles by 2025. Two dozen of the world’s largest automakers–from Toyota to Aston Martin–sent a letter to Scott Pruitt, the new EPA administrator. The letter said the rule was rushed, and needs a more thorough evaluation to determine if “the future standards are feasible” and “cost-effective.” While the rule has yet to be revoked, the Trump Administration has signaled it would likely reverse the rule as early as this week.

Alec Siegel

Alec Siegel is a staff writer at Law Street Media. When he’s not working at Law Street he’s either cooking a mediocre tofu dish or enjoying a run in the woods. His passions include: gooey chocolate chips, black coffee, mountains, the Animal Kingdom in general, and John Lennon. Baklava is his achilles heel. Contact Alec at ASiegel@LawStreetMedia.com.

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The United States is viewed both domestically and internationally as one of the most water secure nations in the world. The 2011 California drought represents one of the first developments to challenge this notion in many years. California’s four-year rain shortage has brought the realization that a community can’t survive without a water source to the attention of many Americans and that the United States isn’t immune to water scarcity. This year’s El Niño finally brought rain to California, but seemingly just as the drought was temporarily broken on the West Coast, media attention fell onto another water-related crisis: Flint, Michigan.

Flint and Beyond

Three years ago Michigan Governor Rick Snyder appointed Darnell Earley as the Emergency Manager of Flint, giving him complete control over the city’s budget and charged him with saving the city from bankruptcy. In 2014, in a move calculated to save the city millions of dollars, Earley made the executive decision to relocate the city’s drinking source from the distant Lake Huron to the much closer Flint River. While the Flint River may have been more economically convenient, the water was not properly treated with an anti-corrosion chemical to prevent erosion of lead pipes. The water was understood to be toxic from years of being used as a chemical dumping ground by Flint’s now extinct automobile industry, which also made it significantly more corrosive than most sources.

The water looked and smelled unpleasant, and while it wasn’t fully understood at the time the switch was made, water in Flint contained dangerous quantities of lead residue from local pipelines. After the switch, Flint residents experienced hair loss and fell seriously ill, leading them to quickly contact city officials. Earley, the Governor’s office, and the State Health Department were all contacted but largely ignored complaints. It took two entire years before a team of researchers from Virginia Tech did an official study that proved the water was highly toxic. The health consequences of those two years will last a lifetime for the people of Flint, and has rendered the entire community unstable.

Flint serves as a chilling example of how dependent an area and its people are on their water source and marks a shift in national attention toward the idea of water instability in America. The story of the Flint water crisis went viral and has been covered widely since the revelations. In January 2016, Time Magazine published an article on Flint titled, “The Poisoning of an American City,” which was featured on its cover.

Flint became one of just a few nationally-circulated stories of a community experiencing water pollution since before the Clean Water Act was passed and in the months following the Flint crisis, similar stories have been popping up all over the country. On January 23, attention turned to St. Joseph, Louisiana, where the drinking water runs brown from aging and malfunctioning pipelines. Then on February 21, CNN covered a story on Crystal City, Texas where the faucets and showerheads dispense sludge due to sediment buildup in their storage tanks.

A History of Water Legislation in the United States

Many will argue that America is currently experiencing its most water-secure period in history. Prior to the 70s, the United States had essentially no regulation for pollution and chemical dumping was widely practiced by the industrial sector. In the late 60s only about one-third of U.S. waters were considered safe to swim in and fish from. According to a 1970 report from Bureau of Water Hygiene, a sample of American tap water supplies found that 36 percent exceeded the limits of established drinking water standards. It required several major tragedies to change the political attitude toward water as a public health issue, including toxic spills and oil leaks. Perhaps the most memorable of these events happened in 1969 in Cleveland when the Cuyahoga River lit on fire due to its high quantity of flammable waste. The image of a burning river emblazoned Time Magazine and led to a national outcry.

America’s first water-related piece of legislation was the Federal Water Pollution Control Act of 1948, which was followed by five additional bills written between 1956 and 1970. In 1972, in response to major pollution disasters, the Federal Water Pollution Control Act was revised and expanded in order to give it a much larger scope of control. The newly dubbed Clean Water Act of 1972 was passed with bipartisan support and in spite of a veto from President Nixon, representing the most influential piece of water-related legislation in American history.

While previous water quality bills ultimately held the states responsible for interpretation and enforcement, the Clean Water Act marked a departure from this line of thinking–giving the federal government direct authority to regulate water quality. The act gave the Environmental Protection Agency (EPA) the power to set industrial wastewater standards, made it illegal for individuals to dump waste in navigable waters, and forced industrial and municipal facilities to obtain permits to discharge their waste. These permits could also be revoked–effectively shutting down a business if the discharges were found to exceed EPA standards. Industries across America were forced to upgrade their technology in order to generate smaller waste streams and use a secondary treatment on the waste that they did create. The Clean Water Act targeted the largest sources of pollution–toxic waste dumping, oil spills, and large sewage leaks–using better technology as the primary solution.

The Clean Water Act was amended three times during the 70s and 80s to strengthen its ability to regulate waste. The EPA’s power was further increased by the Ocean Dumping Act in 1972 and the Safe Drinking Act in 1974. These efforts had a huge influence on reducing large scale pollution and has successfully increased the percentage of swimmable and fishable waters in the United States from one-third to almost 60 percent, as well as dramatically decreasing the load of contaminants in drinking water across the nation.

So Where Are We Now?

While considerable progress has been made, the Clean Water Act was written with the goal of making the United States’ waters swimmable and fishable by 1983. However, in 2016 the EPA has admitted that over 40 percent of U.S. waterways don’t meet national standards. While regulations have significantly improved, they’ve failed to protect many communities from pollution. Flint, Crystal City, and St. Joseph are extreme examples of water sources gone wrong, but they’re far from unique. Citizens across the country are regularly exposed to dangerous chemicals through the drinking water. The Natural Resource Defense Council studied major cities all across the United States and found that many of them had tap water that contained a number of contaminants. The most common and deadly of these contaminants were lead, pathogens, arsenic, radon, and perchlorate rocket fuel.

The D.C.-based Environmental Working Group conducted a similar study that took place over the course of five years, testing for 316 different contaminants in water supplied to 48,000 communities throughout the country. They found the same trend of pollutants appeared regularly in drinking water throughout the country, especially in concentrated urban areas. They ranked different communities on the percentage of chemicals found in the water, the number of different chemicals present, and the level of danger of each individual community.

Both the Natural Resources Defense Council and the Environmental Working Group found that some of the most severely polluted areas in the U.S. were major cities, including San Diego, Las Vegas, Jacksonville, Albuquerque, Houston, and Denver, all of which had a number of dangerous contaminants in their drinking water exceeding the EPA’s safe limits. Across the nation, cities have been using inaccurate water testing practices, withholding information from their citizens, and completely bypassing EPA guidelines.

“Sewage Contaminated Water” courtesy of Tony Webster via Flickr

Obstacles to Keeping Water Clean

Regulating the discharges of America’s entire industrial and municipal sectors is a task of momentous proportions and many dangerous chemicals don’t specifically have regulations attached to them. As such, many companies can get away with dumping illegally. If an industry is particularly critical to the economy of an area, it may have a blind eye turned to its actions, at least from local governments. Furthermore, there are also cases like Flint where much of the damage had already been done. The auto industry responsible for the majority of the dumping in the Flint River, with the exception of Flint Motors, died out long ago. All the companies that could now be fined or forced to pay for the cleanup have gone bankrupt.

There are also several legal loopholes that certain industries can use to legally pollute groundwater. Perhaps the most significant of these is the Energy Policy Act of 2005, which allocated federal subsidies to different energy sources with the majority of the funds going to the fossil fuel industry. However, beyond covering subsidies, the act also gave hydraulic fracturing companies the privilege to legally inject water based pumps into the ground without publicly releasing the chemicals used in the underground pumping process. This became known as the Halliburton Loophole, due to the fact that the Energy Policy Act was designed by a team directed by Vice President Dick Cheney, a former CEO of Halliburton.

A large part of the problem is also that the Clean Water Act regulates pollution that comes from point sources, or identifiable and quantifiable streams of pollution, such as oil leaks or sewage streams. However, up to 50 percent of America’s pollution is estimated to come from non-point sources, which are widespread and difficult to track or control. Pollution can often enter water sources simply by getting carried along with rainwater. Non-point sources include animal feces, particularly from livestock and pets (whose feces contain different, more harmful bacteria and pathogens as a result of their unique diets); nitrogen and phosphorus from lawn fertilizers; and agricultural pesticides, dirt, general sediments, and rock salt; the leaking residue of aging septic tanks; and numerous other examples. Aging and deteriorating piping systems can also transport contaminants directly to your home as water moves through them.

The problem is not just with water pollution but also with excessive over-withdrawal from water sources. A body of drinking water is restored naturally with rainfall that runs–both as surface water and groundwater–into lakes, ponds, and reservoirs. However, if a community continuously withdraws water at a faster rate than the watershed can restore it, the level of accessible drinking water will lower and lower until the body of water is completely undrinkable. This problem is seen at its worst in highly populated urban areas and tourist destinations where large water withdrawals are necessary to sustain the community.

Major American waterways such as the Colorado River and Lake Mead, both of which provide water to tens of millions of people, are at risk of drying up within the next few decades. Long-term water use is often not taken into account by city planners; for instance, Los Angeles and Las Vegas are currently America’s two fastest growing cities and both are built on literal deserts. El Niño’s unorthodox rain patterns have brought temporary relief to these areas, but the pattern of dry, arid weather will eventually resume and the California drought shows every sign of resurfacing. These problems are also not limited to the West–40 out of 50 states are currently predicted to have one or more regions that will experience water shortage within the decade.

Recent Policy Developments

The most relevant recent water-related policy development happened in 2014 when the Obama Administration passed the Waters of the United States Rule, also known as the Clean Water Rule. The purpose of the rule was both to give more regulatory oversight to the Environmental Protection Agency and to expand the definition of protected waters beyond lakes and rivers to also include smaller waterways such as streams and tributaries, which ultimately flow into lakes and rivers and thus impact the health of our drinking water.

Republican members of Congress have objected to the Clean Water Rule on the grounds that it unfairly increases federal power where the government has no right to assert control over businesses, farmers, and private landowners. The rule’s opponents have attempted to overturn it using the Congressional Review Act, and on January 13, the House of Representatives effectively voted to overturn the rule. Only six days later, on January 19, President Obama responded by vetoing the overturn. Without the necessary two-thirds majority required to override his veto, the Clean Water Rule will continue to be U.S. law.

Conclusion

With the rate and severity of droughts increasing, so does our understanding of the sheer volume of polluted water sources throughout the nation, and it’s more important than ever to take water instability seriously. Despite some progress in the past few years, the same dangers are just as alive today as they were in the pre-seventies era. This is illustrated well by the fact that in 1969 the burning Cuyahoga River made the cover of Time magazine and 57 years later we see yet another polluted waterway–this time the Flint River–back on the magazine’s cover. If there’s a positive side to the recent surge in media attention toward these events it’s the idea of a water crisis as a tangible, possible thing that could happen in America may now be present in the minds of American citizens and voters.

There is no silver bullet to water instability; any approach to making American watersheds sustainable must involve a number of different methods. Some cities in America have banned the use of chemical rock salt for roads and others have banned the use of phosphorous and nitrogen-based fertilizers. In response to the drought, California set strict laws regulating the amount of water each citizen was allowed to use and that each establishment was allowed to offer. As the population continues to grow, especially in urban centers, more and more areas may have to regulate water withdrawal with an eye to the future. Perhaps one of the most needed changes is for more and more areas to regularly test their water for contaminants to determine its safety and create a baseline measure to determine changes. The most important element of water sustainability is to act now and plan for the future, understanding that the health of a community directly correlates to the health and security of its water source.

Resources

ATTN: U.S. Cities are Underreporting Heavy Metals in their Water Supply

Daily Finance: 10 American Cities with the Worst Drinking Water

Encyclopedia.com: Clean Water Act of 1977

EPA: Summary of the Clean Water Act

EPA: What the Clean Water Rule Does

The Guardian: Flint Water Crisis: Congressman says EPA guilty of ‘Flat-out Incompetence’

NRDC: Study Finds Safety of U.S. Drinking Water at Risk

The New York Times: A Question of Environmental Racism in Flint

The New York Times: Events that Lead to Flint’s Water Crisis

The New York Times: Unsafe Levels of Lead in Tap Water Not Limited to Flint

Salon: It’s Not Just a Flint Problem: Other U.S. Cities are Suffering from Toxic Water

Salon: America’s Water Crisis is so Much Bigger than California

Water Encyclopedia: Clean Water Act

The Water Project: Water Scarcity in U.S.

Earth Works Action: The Halliburton Loophole

CNN: Water Runs Black in Texas Town Already Wracked by Corruption Arrests

Environmental Protection Agency: Natural Gas Extraction – Hydraulic Fracturing

The Hill: House Votes to Overturn Obama Water Rule

Time: The Burning River that Sparked a Revolution

USA Today: Obama Vetoes Attempt to Kill Clean Water Rule

The News-Star: Water Woes Plague St. Joseph

Kyle Downey

Kyle Downey is an Environmental Issues Specialist for Law Street Media. He graduated from Skidmore College with a Bachelor’s degree in Environmental Studies. His main passions are environmentalism and social justice. Contact Kyle at Staff@LawStreetMedia.com.

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How far can government agencies go when trying to implement new regulations? According to a review from the Government Accountability Office (GAO), the EPA broke the law in its push to gain public support for its new water regulation rule, using what the GAO calls “covert propaganda.” As social media becomes an increasingly important platform for government agencies to share information with the public, it’s also becoming clear that a line exists in terms of how far their outreach can go.

The EPA rule that prompted the campaign sought to better define and expand the agency’s authority to regulate the “navigable waters” of the United States under the Clean Water Act. A series of Supreme Court decisions made it particularly difficult to determine the waters under EPA authority, so the agency proposed a new rule to create clarity while also expanding its jurisdiction. The rule immediately became controversial. In fact, Republicans and a range of business interests, from farmers to the oil industry, came out against the rule before it took effect. Critics argued that the rule was a sweeping example of government overreach with the EPA seeking to expand its authority to regulate and dictate the use of land near water sources. The interest groups opposing the new legislation created a particularly powerful coalition, lobbying members of Congress and creating public relations campaigns to communicate their opposition.

In response to the strong opposition from the business lobby, the EPA went on its own social media campaign to spread information about the new rule during the public comment period. A New York Times article noticed the unconventional methods employed by the EPA, citing observers concerns that the agency was overstepping its bounds.

After a review of the EPA’s practices, the GAO report identified four social media campaigns initiated by the EPA, concluding that two of them violated anti-lobbying restrictions and laws that prohibit publicity or propaganda for agencies that receive Congressional appropriations. While government officials and the heads of certain agencies are allowed to explicitly advocate for certain policies, federal agencies themselves are not allowed to lobby the public.

The EPA’s position, which is reflected in the GAO report, maintains that the agency acted properly in its use of social media. In a statement given to the New York Times, an EPA Spokesperson said:

We use social media tools just like all organizations to stay connected and inform people across the country about our activities… At no point did the E.P.A. encourage the public to contact Congress or any state legislature.

The GAO took issue with the agency’s use of a platform called Thunderclap, which allows a message to be posted across supporters’ Facebook and Twitter accounts all at once. The problem identified by the GAO was that when the message was shared across social media, which may have reached as many as 1.8 million people, the EPA was not was not easily identifiable as the source. Because government information is supposed to be closely tied to its source, the use of Thunderclap constituted “covert propaganda.”

The EPA also used a #DitchtheMyth campaign on social media, which allowed people to share the agency’s campaign with their networks. The GAO argued that this was acceptable because the prescribed message referenced the EPA’s official Twitter accounts and the graphics used the EPA logo. The #CleanWaterRules campaign was also considered lawful by the GAO. This campaign did not violate the publicity restrictions placed on the agency because the GAO found that the communications did not qualify as self-aggrandizement, but rather were intended to promote discussion and associate the proposed rule with the agency.

Finally, the GAO found that an EPA’s blog post violated anti-lobbying restrictions because of how hyperlinks connected people with advocacy groups while knowing that members of Congress explicitly opposed the rule. A blog post by an EPA communications director illustrated some of the ways the rule would help people in everyday activities like surfing and drinking beer. The blog post linked to a National Resource Defense Council page, which talked about the effects of clean water on beer brewing, and a Surfrider Foundation article about how pollution affects surfers. Both websites also featured some sort of action section that encourages visitors to contact their legislators about the EPA rule. The GAO concludes:

EPA violated the anti-lobbying provisions contained in appropriations acts for FY 2015 when it obligated and expended funds in connection with establishing the hyperlinks to the webpages of environmental action groups

By hyperlinking to these advocacy organizations’ websites, the EPA associated itself with their message–including appeals to contact Congress about open legislation–which violate the anti-lobbying restrictions placed on the agency.

While these efforts don’t necessarily constitute flagrant abuse, they do seem to violate the restrictions placed on the EPA as the GAO review found. In its report, the GAO recommended that the agency determines how much it spent on unlawful practices and notify Congress and the President that the violated the Antideficiency Act, which prohibits federal employees and agencies from spending unauthorized or unappropriated funds.

This finding illustrates the particularly difficult position many government agencies can find themselves in while trying to establish new rules and regulations. The EPA is arguably one of the best examples, as a highly polarized Congress has made its efforts particularly controversial. As more and more regulation is created through executive action, efforts like the EPA’s Clean Power Plan and Waters of the United States rule have come under more and more criticism from opponents. Much of this ends up being manifested in lawsuits and political disagreement–the new water rule is currently facing challenges from 18 different states. But as the debate rages on, agencies are tasked with informing the public about of their policies and potential effects. Using social media to do so can be particularly effective, but as the GAO ruling shows, limitations certainly exist.

Kevin Rizzo

Kevin Rizzo is the Crime in America Editor at Law Street Media. An Ohio Native, the George Washington University graduate is a founding member of the company. Contact Kevin at krizzo@LawStreetMedia.com.

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