EPA’s New Water Rule Will Gut The Clean Water Act

According to the rule that the Environmental Protection Agency is expected to release next week, streams that are dependent on rainfall and wetlands not physically connected to year-round waterways will no longer be covered by the Clean Water Act.

A new water rule will greatly reduce federal water protections, imperiling drinking water, endangered species, and ecosystems across the country. According to the rule that the Environmental Protection Agency is expected to release next week — some details of which were leaked Thursday — streams that are dependent on rainfall and wetlands not physically connected to year-round waterways will no longer be covered by the Clean Water Act.

As a result of the change, an estimated 60-90 percent of U.S. waterways could lose federal protections that currently shield them from pollution and development, according to Kyla Bennett, director of science policy at Public Employees for Environmental Responsibility. Alaska and the arid west will be hit particularly hard by the new rule, which will be subject to a comment period before it is finalized.

Environmentalists are bracing for what they predict will be disastrous consequences for our nation’s waterways. “For some parts of the country, it’s a complete wiping away of the Clean Water Act,” said Brett Hartl, government affairs director at the Center for Biological Diversity.

By removing water quality standards and permitting requirements, the rule will open these streams, rivers, and wetlands to being paved over, filled in, or polluted. The result, environmentalists say, may take us back to the days of river fires. “You’ll be able to dump as much crap into them as you want,” Hartl said of our nation’s waterways. “Anyone will be free to destroy them as they see fit.”

Rivers of Fire

Jane Goodman had just graduated from high school when the Cuyahoga River caught fire in June 1969. The river fire focused attention on the extent to which Americans had fouled their waterways and is widely seen as the final indignity that spurred Congress to pass the Clean Water Act.

But for Goodman, who grew up in a suburb of Akron, Ohio, not far from the Cuyahoga, the blaze barely registered. She had always known the river, which flows north from Akron into Cleveland and from there into Lake Erie, to be coated with a slick of oil and floating debris. Heavy pollution was the norm back then. The water, which made downtown Cleveland smell like a giant septic tank, was often the color of whatever paint the Sherwin-Williams company happened to be cleaning out of its tanks. The Cuyahoga had caught fire at least nine times before that day, which explains why Goodman hadn’t thought much of the 1969 fire. She couldn’t remember the river when it wasn’t flammable.

Yet something about that particular moment turned into a national environmental turning point. Just months after a Time magazine story about the fire described the Cuyahoga as a giant cesspool — “chocolate-brown, oily, bubbling with subsurface gases” — Americans reached a collective limit when it came to abusing their waterways. The next year saw the founding of the EPA and the country’s first Earth Day. Two years after that, Congress overrode President Richard Nixon’s veto to pass the Clean Water Act. For the first time, the country had national water quality standards and significant restrictions on what industry could dump into rivers and streams.

The new Trump administration rule imposes the most substantial restrictions on the Clean Water Act since its passage in 1972. Over the last decades, the law has succeeded in removing the most offensive pollution from the nation’s waterways. The floating human excrement is mostlygone, as are the putrid stenches, and rivers rarely flow in day-glow colors or with so much industrial waste that they pose fire hazards. PCBs and DDT are no longer freely dumped into rivers and streams, as they were before the law took effect.

But many of the less obvious water problems remain. “You only see the surface,” said Goodman, who is now the executive director of Cuyahoga River Restoration and has spent the past 12 years fighting to improve that waterway. “River restoration is like an onion,” said Goodman. “As soon as you fix those problems, that peels away the top layer. But then underneath it is a different layer.”

Indeed, there are many areas in which the law was not so successful. The drafters of the Clean Water Act set the goal of stopping all pollution discharges by 1985 and making all waterways fishable and swimmable. “It’s completely failed in that area,” said Daniel Estrin, general counsel and advocacy director at Waterkeeper Alliance.

To make matters worse, the number of contaminants in water has ballooned in the intervening years. The Environmental Working Group recently surveyed states and found 267 contaminants in drinking water across the country, 93 of which were associated with cancer risk. Many more chemicals that end up in water, including certain members of the class known as PFAS, have yet to be identified, let alone regulated.

The result is a water pollution crisis that is still dire, if less visible. Today, the Cuyahoga is one of 43 contaminated sites deemed official areas of concern in the Great Lakes basin alone. Among the environmental threats it faces are bacteria, storm water runoff, hazardous waste disposal sites, sewer overflows, and warming due to climate change.

While the Cuyahoga, along with all other navigable waterways and their tributaries, will still be protected by federal law, any wetlands not directly connected to them by surface waters will not be.

“Just about all of our tributary streams have wetlands that serve them by holding and filtering the water before it gets to the stream,” said Goodman. “Now, if someone wants to build something between the wetland and the receiving stream, there’s nothing to stop them.”

Goodman said that by lifting the protections for certain waterways, the administration was disregarding the science that shows their interconnectedness. “It’s like keeping protections for your kitchen sink and the sewer in the street and taking them away from all the plumbing in between.”

Ohio currently has its own water protections in place that may continue to protect the Cuyahoga. But with the removal of federal protections and the recent election of a Republican governor, Goodman worries that the state may no longer be as committed to protecting water. “We don’t know if local communities are going to protect their piece of the watershed or if they’ll be able to,” she said.

Even before the new rule goes into effect, more than half of the waterways in the U.S. are officially impaired, according to EPA data. The majority of the more than 1 million miles of rivers and streams that have been assessed violate federal water quality standards — as do more than 70 percent of ponds, lakes, and reservoirs, and almost 80 percent of the bays and estuaries that have been assessed. Of the 4,460 miles of monitored Great Lakes shoreline, 98 percent is contaminated, as are virtually all the Great Lakes’ open waters, which now contain PCBs, dioxin, mercury, pesticides, and other pollutants.

Yet by easing the public’s concerns about water quality, the visible improvements made possible by the Clean Water Act have ironically paved the way for the new rule that will further increase pollution.

“The Clean Water Act succeeded just enough to doom itself,” said Estrin, whose organization helps people across the country contend with coal ash leaks, chemical spills, algal blooms, drinking water contamination, and all matter of water crises. “The rollback will take us backward. And most people don’t remember just how bad that was.”

About the reporter


Sharon Lerner

Sharon Lerner is a reporting fellow with Type Investigations covering environmental issues for The Intercept.