Latest News: On September 1, 2020, Earthjustice filed a lawsuit on behalf of tribes and environmental groups to challenge a Trump administration rule that weakens clean water protections in an effort to fast-track oil and gas pipelines. Section 401 of the Clean Water Act gives states and tribes the power to block federal projects that harm lakes, streams, rivers, and wetlands within their borders. Earthjustice is fighting to defend their authority to protect clean water. “This unlawful rollback from the Trump administration tramples the rights of tribes and states to review and reject dirty fossil fuel projects that threaten their water. We will keep fighting until our government puts people before polluters and protects clean water for every community,” said Earthjustice staff attorney Moneen Nasmith.

Everyone and everything needs clean water. Without clean drinking water, humans get sick. Plants, animals, aquatic life, and the entire food web need clean water to survive. That’s why the Trump administration’s efforts to gut federal clean water protections are so disturbing.

The administration repealed the Clean Water Rule and is now attempting to undo the landmark 1972 Clean Water Act. Because water policy can start to feel like a whirlpool at times, read on for a breakdown of what’s being proposed and what will be lost.

How Is the System Supposed to Work, Anyway?

Let’s say a company wants to start mining for coal or heavy metals, or an energy company wants to drill for oil and gas, or a developer wants to pave over a bunch of wetlands for a shopping mall. First, the operator has to apply for and secure a federal permit. Because industrial and development activities pollute water and destroy wetlands, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers are tasked with reviewing plans and deciding whether to give them a green light, setting down requirements along the way to minimize water pollution. The 1972 Clean Water Act guides this entire process. It spells out the minimum requirements to protect water quality for health and the environment and to protect waterbodies from destruction.

Why do we have a Clean Water Act and a Clean Water Rule, and what’s the difference?

Congress passed the Clean Water Act in 1972. Even though the 1972 Clean Water Act established that all “waters of the United States” would be federally protected, things haven’t exactly panned out that way.

The filthiness of Maine's Androscoggin River helped inspire the passage of the Clean Water Act in 1972. Charles Steinhacker / National Archives

Instead, there have been a lot of attacks by industry and developers over which waters should really get the protections of the Act, because polluters would prefer to not be subjected to the Acts requirements and the permits that ensure those requirements are applied. Over time, a series of Supreme Court decisions arising from these fights sent mixed messages about which waters should be protected under the Clean Water Act.

The Clean Water Rule — enacted by the Corps and EPA in 2015 under the Obama administration — sought to clear up this confusion and provide science-based guidance on how the Corps and EPA would decide which waters are protected under the Act. Obama’s EPA first completed a comprehensive study on watershed health and connectivity and checked its work with panels of the most significant experts in all fields related to water from biology to geology to hydrology. They then rolled out a new rule based on that science. Environmentalists generally received the Clean Water Rule as a step in the right direction.

What’s the administration’s next move?

The repeal of the Clean Water Rule effectively threw away those science-based definitions, so now decision-making about Clean Water Act permits will revert back to the old, convoluted system.

Even more worrisome, though, is that the Clean Water Rule repeal clears the path for another proposal — essentially a replacement rule, which environmentalists have dubbed the “Dirty Water Rule.” This is a completely new take on that all-important phrase from the Clean Water Act, “waters of the United States” (or WOTUS, if you want to get wonky) and it attempts to cut huge numbers of waterbodies across the nation out of the protections in the Clean Water Act.

How many people would this affect?

The Clean Water Rule protected drinking water sources for more than 117 million Americans — over a third of the nation. If headwaters of major rivers are no longer protected from industrial pollution, downstream water quality will also suffer.

What Is The Dirty Water Rule?

To understand the Dirty Water Rule, imagine you have a map of the United States charting all the rivers, lakes, bays, lagoons, wetlands, headwaters, etc. across the nation. Then, someone takes a Sharpie to it, marking X’s over a significant portion of them and declaring they no longer count as “waters of the United States.” For these excluded waterways, federal clean-water standards no longer apply, and nobody will step in to stop polluters from doing things like burying streams with mining debris, or flushing toxic byproducts into a river or a bay.

The Dirty Water Rule would negatively affect nearly one in every five streams; more than half of all wetlands; and many other lakes, ponds and other waters. Especially troubling is that it guts protections for wetlands, which naturally filter harmful industrial pollution, naturally store floodwaters, and act as buffers in coastal locations susceptible to hurricanes. Trump’s Dirty Water Rule is likely to be unveiled near the end of 2019. (Editor's Note: The Dirty Water Rule was finalized on Apr. 21, 2020.)

Earthjustice staff

I’ve Made it This Far, What’s in the Scary Fine Print?

Coinciding with the Dirty Water Rule is an alphabet soup of other under-the-radar policy changes that would further weaken the vital protections built into the Clean Water Act. Here’s a brief rundown:

The sun rises over a skiff near Bristol Bay in Alaska. Carl Johnson / Getty Images

EPA Ties Its Own Hands: One rule change currently being floated undermines a power granted to EPA under the Clean Water Act, called “404(c) authority.” 404(c) authority sets things up so that if the U.S. Army Corps of Engineers green-lights a permit that has an “adverse/unacceptable effect” on the environmental waterway, the EPA can step in to cancel it. This override power was used by EPA recently to halt a permit for Alaska’s highly controversial Pebble Mine, a massive copper and gold mine that would irreversibly harm Alaska’s Bristol Bay watershed — the life source of one of most important salmon fisheries in the entire world. The proposed rule change limits EPA’s 404(c) authority to a tiny window of time, making it much harder for the agency to ever step in and make things right if the Corps approves a senseless proposal like Pebble Mine again.

One rule change currently being floated undermines a power granted to EPA under the Clean Water Act, called “404(c) authority.” 404(c) authority sets things up so that if the U.S. Army Corps of Engineers green-lights a permit that has an “adverse/unacceptable effect” on the environmental waterway, the EPA can step in to cancel it. This override power was used by EPA recently to halt a permit for Alaska’s highly controversial Pebble Mine, a massive copper and gold mine that would irreversibly harm Alaska’s Bristol Bay watershed — the life source of one of most important salmon fisheries in the entire world. The proposed rule change limits EPA’s 404(c) authority to a tiny window of time, making it much harder for the agency to ever step in and make things right if the Corps approves a senseless proposal like Pebble Mine again. EPA Ties States’ and Tribes’ Hands: Another rule change messes with something known as “Section 401 certification.” This gives states and tribes the power, under the Clean Water Act, to block federal permits when they don’t pass the smell test for the state’s or tribe’s water-quality standards. Forget “state’s rights” values; the Trump administration’s rollback of Section 401 severely restricts states’ ability protect their waterways. Earthjustice is representing tribes and environmental groups in a lawsuit challenging the rule change.

Another rule change messes with something known as “Section 401 certification.” This gives states and tribes the power, under the Clean Water Act, to block federal permits when they don’t pass the smell test for the state’s or tribe’s water-quality standards. Forget “state’s rights” values; the Trump administration’s rollback of Section 401 severely restricts states’ ability protect their waterways. Earthjustice is representing tribes and environmental groups in a lawsuit challenging the rule change. More Mercury, More Problems: Another proposal, dubbed the “Toxic Water Rule,” would weaken pollution controls for coal-fired power plants. Power plants are by far the largest contributors of toxic pollution into our waters, dumping a toxic stew of mercury, arsenic, lead, and selenium into waterways, even though there are affordable solutions to clean up these discharges before they reach our surface waters. Earthjustice has long been involved in this issue.

Another proposal, dubbed the “Toxic Water Rule,” would weaken pollution controls for coal-fired power plants. Power plants are by far the largest contributors of toxic pollution into our waters, dumping a toxic stew of mercury, arsenic, lead, and selenium into waterways, even though there are affordable solutions to clean up these discharges before they reach our surface waters. Earthjustice has long been involved in this issue. Skip This Part if You’re Eating: Yet another anticipated Clean Water Act attack concerns a regulation with a viscerally gross title: the “Sewage Blending Rule.” This would make it easier for wastewater treatment plants to release raw sewage blended with treated wastewater into waterways, if their treatment systems get overwhelmed by major “wet weather” events. (In related news, the climate crisis will bring more of these events.)

Yet another anticipated Clean Water Act attack concerns a regulation with a viscerally gross title: the “Sewage Blending Rule.” This would make it easier for wastewater treatment plants to release raw sewage blended with treated wastewater into waterways, if their treatment systems get overwhelmed by major “wet weather” events. (In related news, the climate crisis will bring more of these events.) Another Crappy Loophole: Finally, the Trump administration has adopted a radical new interpretation of some facets of the Clean Water Act, creating a water pollution loophole. The Trump administration’s EPA issued guidance that pollution discharges into protected waters via groundwater are categorically excluded from Clean Water Act regulation. In other words, polluters can get away with sullying clean water by indirectly disposing of their waste through groundwater. Earthjustice went to the U.S. Supreme Court in November 2019 on a case related to this very issue. (See our online explainer: The Clean Water Case of the Century.)

The Supreme Court case that Earthjustice will argue in November involves a Maui wastewater treatment facility that is polluting Kahekili Beach, a local snorkeling spot. 7Michael / Getty Images

What Can I Do to Stop This?

It’s understandable if you feel queasy after reading about the Dirty Water Rule, the Toxic Water Rule, the Sewage Blending Rule, and all of the other nefarious changes spearheaded by Trump’s so-called Environmental Protection Agency. But there are ways to weigh in and help oppose these rule changes! One thing you can do is reach out to your elected officials and tell them to stand up against Trump’s attacks on the Clean Water Act. And, look out for action alerts from Earthjustice and other organizations to join the opposition as these changes are formally proposed — consider signing up for email updates if you haven’t already.

Originally published on Oct. 15, 2019. Updated following the administration's announcement on Apr. 21.