Comment Letter Talking Points:
What will the Trump administration’s proposal mean to our waterways?
● This rule would strip whole categories of water bodies and waterways of Clean Water Act protection, jeopardizing the water you drink, swim, or fish in. By allowing polluters to dump toxic chemicals into water that’s no longer protected, it would jeopardize your drinking water.
● The proposal is about undermining science and not taking responsibility to protect the entirety of the system. It puts our drinking water at risk.
● We should have science-based rules that affect the things we love.
● In many areas of the country, robust, vibrant outdoors-based businesses are a vital component of the economy; without readily available water, the landscapes upon which those businesses depend will wither and die.
● These changes give polluters incentives to move pollution discharges upstream to avoid enforcement under federal law.
● The change would come at a time the nation’s waters are already imperiled. Close to 70 percent of the waters assessed by EPA are already classified as “threatened” or “impaired.”
● The proposal would strip federal protections from at least 18 percent of streams and 51 percent of wetlands nationwide, according to a presentation by Army Corps. We feel this estimate is low. In fact, federal agencies don't have adequate data to identify the waters that would lose protection or the impact of those losses.
● The proposal would mean that citizens defending waterways or wetlands that have been stripped of Clean Water Act protection would no longer have the right to sue under the Clean Water Act’s citizen suit provision.
○ This provision of the Clean Water Act is a foundation of our work. Between 2005 and 2014, Waterkeeper Alliance and local Waterkeepers were responsible for nearly 25 percent of all citizen enforcement actions under the Clean Water Act.
● This is the most consequential attack on clean water since the passage of the Clean Water Act in 1972. Congress understood then to protect the waters of this country, you need to protect all of them.
What waters would lose protection?
● Broad categories that would lose protection:
○ Interstate waters, one of the three key categories of protected waterways under the Clean Water Act. Stripping these waters of protection makes it harder for states to protect their drinking water.
○ “Ephemeral” streams that flow in direct response to precipitation; other ephemeral water features that contain water only when it rains.
■ Nearly two million miles of the nation’s streams outside of Alaska are intermittent or ephemeral.
■ This would be devastating for the arid West. In Nevada, 85 percent of streams are ephemeral; in New Mexico, 66 percent; and in Arizona, 51 percent, according to the U.S. Geological Survey.
● Possibly excluded:
● New Mexico’s Chaco River, a 100-mile tributary to the San Juan
● Nevada’s Las Vegas Wash, which carries 180 million gallons of treated wastewater a day into Lake Mead, which supplies drinking water for California.
○ “Closed basin” lakes, such as the namesake of Oregon’s Crater Lake National Park, which, despite their size and importance, do not connect to waters defined as “traditionally navigable.” Crater Lake is the deepest lake in America and one of the cleanest in the world.
○ Tributaries and streams that don’t connect to “traditionally navigable waters” directly
● Possibly excluded:
● The 50-mile-long Little Lost River in Idaho, which discharges into the Snake River Plain, going subsurface before reaching the Snake River.
○ All wetlands that don’t have surface connections to traditionally navigable waters. Among the types of wetlands that appear to be excluded are many prairie potholes, western vernal pools, Carolina and Delmarva bays, Texas coastal prairie wetlands and pocosins.
■ There are approximately 20 million acres of “isolated” wetlands in the continental U.S.
● Possibly excluded:
● Wood River Wetlands in Oregon, isolated from adjoining water bodies by levees and water-control structures, and known for having some of the best trout fishing in the Klamath Basin.
○ Stormwater control features constructed in upland to convey, treat, infiltrate, or store stormwater
○ Ditches and ditched streams at point source polluters, including industrial animal operations
● The proposal would virtually eliminate the Clean Water Act’s protections across the arid West, from West Texas to Southern California, including most of New Mexico, Arizona, and Nevada.
● The proposal leaves room for more extensive rollbacks following the agencies’ receipt of comments, so the final rule will likely be even worse than this dismal proposal.
Why does the administration say it’s doing this?
● The Trump administration is framing this as replacing Obama EPA’s 2015 definition of “Waters of the U.S.” In fact, this guts the Clean Water Act itself.
● The administration argues that its rule would “end years of uncertainty over where federal jurisdiction begins and ends.” Instead, it will lead to years of litigation and its unscientific approach will lead to mass confusion and more polluted water.
● The administration claims the rule change would allow a farmer to stand in a field and say whether a water protected or not. This is false, as the administration has adopted complex, unscientific tests and connectivity requirements that will be difficult for even trained hydrologists to interpret and apply; in many instances, the data to perform the required analysis doesn’t exist.
How bad were our waterways before the Clean Water Act?
The states were responsible for maintaining clean waterways before the Clean Water Act. They didn’t.
● Ohio’s Cuyahoga River had caught fire at least a dozen times before June 22, 1969, when a spark from a passing train ignited an oil slick on the river. Photos of the burning river landed in “TIME” magazine, which described the Cuyahoga as a river that "oozes rather than flows" and a place where a person "does not drown but decays."
● The Potomac, “TIME” noted, left Washington “stinking from the 240 million gallons of wastes that are flushed into it daily,”
● “Omaha’s meatpackers fill the Missouri River with animal grease balls as big as oranges,” according to the same article
How far back does Waterkeeper Alliance’s work go on what waters are covered by the Clean Water Act?
● Our work fighting alterations to the definitions of waters covered under the Clean Water Act goes back to when the Obama administration proposed guidance eliminating protections for certain types of waters in 2011.
● Waterkeeper Alliance advocated for the strongest law possible, asking EPA and the Army Corps for a broad, clear definition of Waters of the U.S.. Along with partners, we challenged the Obama administration’s rules on the grounds they created illegal exemptions for industry and failed to protect important waterways and endangered species. These cases are still pending.
● This recent attack on the Clean Water Act by President Trump is the most egregious attack on this cornerstone law yet and will require quick and national mobilization. We are gearing up for a fight we expect to last at least two years.
● You can view all of our public statements and blogs on WOTUS to date here: https://waterkeeper.org/tag/wotus/.
Was there bipartisan support for the Clean Water Act?
● Yes. The conference version of the Clean Water Act passed the House by a vote of 366 to 11 and the Senate, unanimously, with 74 Senators voting yes.
● President Richard Nixon was a Republican, as was the founding EPA administrator, William D. Ruckelshaus, who served under him. Ruckelshaus urged Nixon to sign the the Act, choosing words of stewardship. “It seems reasonable to me to spend less than one percent of the Federal budget and .2 percent of the Gross National Product over the next several years to assure for future generations the very survival of the Gross National Product,” he wrote.
● Pres. Nixon vetoed the Act, blaming its cost. Only two hours later the Senate voted 52-12 to override the veto, with 17 of the votes in favor coming from Republicans. The House followed, voting 247 to 23 to override — more than ten to one — with 96 of the yes votes from Republicans.
● During that debate, Republican Sen. Howard Baker, Republican of Tennessee said, “Study after study, public opinion poll after public opinion poll have revealed that the economy of this nation can absorb the costs of cleaning up pollution without inflation or without a loss in economic productivity. As I have talked with thousands of Tennesseans, I have found that the kind of natural environment we bequeath to our children and grandchildren is of paramount importance. If we cannot swim in our lakes and rivers, if we cannot breathe the air God has given us, what other comforts can life offer us.”