Trump Wants to Further Destroy the Clean Water Act

Last November, the Trump administration proposed a regulation that would strip federal water pollution protections from wide swaths of wetlands in the United States. Now, ten months later, the administration has updated it  in an attempt to take away even more wetland protections.

Under the new proposal, which was published last Wednesday in the federal register, pollution of a wetland would only be regulated if the wetland in question flows year-round, with one exception per year of up to 30 days. Under the earlier proposal, wetlands only needed to flow continuously during the wet season to receive protections.

If the new rule is approved, factory farms and other industrial polluters would be allowed to dump waste into unprotected wetlands without any federal restriction or oversight. Wetlands are areas in which soil is saturated with or covered by a shallow amount of water, such as a marsh or a swamp.

The new rule would also strip protections from many of the nation’s intermittent streams, says Royal Gardner, director of the Institute for Biodiversity Law and Policy at Stetson University College of Law in Florida and author of the book “Waters of the United States.”

“Should such a rule be finalized, millions of miles of streams would be without federal protection, and no Clean Water Act permit would be needed to discharge pollutants to those waters,” Gardner told Sentient in an email.

Limiting the Reach of the Clean Water Act

The Clean Water Act regulates water pollution in the United States and requires certain polluters to obtain a permit from the Environmental Protection Agency (EPA) to discharge waste into “Waters of the United States,” or WOTUS. These permits typically require the holders to account for all of the waste they create and place limits on how much pollution they’re allowed to discharge into these waters.

Exactly what constitutes a WOTUS has been the subject of many court cases over the decades, resulting in a constantly shifting legal definition of the term.

In the landmark 2023 case Sackett v. EPA, the Supreme Court ruled that only rivers, lakes, streams and oceans automatically receive protections under the Clean Water Act. The roughly 110 million acres of wetlands in the United States only count as protected waterways if they are continuously connected to a “relatively permanent” body of water. 

Last November, the EPA proposed a new rule to codify the court’s ruling and redefine “Waters of the United States.” The rule would dramatically limit which wetlands are covered under the Clean Water Act. It stated that a body of water a wetland connects to only qualifies as “relatively permanent” if it is “standing or continuously flowing year-round or at least during the wet season.”

But “wet season” is a vague term with ambiguous cutoff points; different parts of the country have different wet seasons, and the dates of those seasons change from year to year. 

“Precipitation patterns and drought patterns are clearly changing on a yearly basis,” Haley Gentry, assistant director at the Tulane Institute on Water Resources Law & Policy in Louisiana, told Sentient at the time. “The Mississippi River basin has very dramatically different seasons, even though the precipitation overall may be about the same. You know, we’re seeing longer dry seasons and shorter wet seasons. So there’s still no clarity on what would be covered.”

The updated proposal removes the concept of a “wet season” and states that a body of water is “relatively permanent” only if it has “standing or continuously flowing water every day of the year during ordinary conditions.” This change avoids the ambiguity of “wet season,” but it’s also a much stricter definition that excludes many waterways that could have qualified under the November proposal. 

The newest proposal contains one small exception to the “continuously flowing” requirement: If a waterway stops flowing for one continuous period of less than 30 days during the year, it will still be protected. 

When the November proposal was released, the Natural Resources Defense Council (NRDC) determined that it would result in 81% of American wetlands losing Clean Water Act protections. Now, the NRDC says the most recent proposal would eliminate protections for 94% of U.S. wetlands.

Agriculture is a Top Source of Water Pollution

Agricultural producers are the largest source of water pollution in the United States, according to the NRDC. Farms apply massive amounts of pesticides, synthetic fertilizer, and manure to their fields. When it rains, those potential contaminants flow into nearby rivers, lakes and streams. Sometimes farmers dump animal waste directly into waterways; other times, manure storage facilities leak and accidentally pollute the water. 

When factory farm waste pollutes waterways, the consequences can be enormous. Phosphorus and nitrogen pollution can cause harmful algae blooms that kill aquatic life, contaminate drinking water and make bodies of water unswimmable. Pollution from factory farms can raise levels of nitrates and pesticides in the water supply, which is linked to higher cancer rates. It can also spread antibiotic-resistant bacteria from farm animals to drinking water, jeopardizing human health and posing a significant public health risk. 

Aside from agriculture, other large contributors to water pollution include energy producers, sewage treatment plants, construction sites and stormwater runoff.

What’s Next: Comments and Lawsuits

The new proposal isn’t law yet. It will be posted online until October 9th, during which time the public will be allowed to offer comments and suggestions. After that, the EPA and Army Corps of Engineers will review the comments and, in all likelihood, propose a final version of the rule.

Gardner predicts that if the final version looks like the current one, it will prompt lawsuits.

“Eliminating federal protections over intermittent waters will be subject to a vigorous legal challenge,” Gardner writes. “Such challenges will be brought in U.S. District Courts, which will result in a continued patchwork of dueling results.”

It’s too soon to say what the final rule will look like and whether it will survive the courts. In the meantime, Gardner stresses that the federal government isn’t the only entity with the authority to regulate water pollution.

“The message I am giving to clean water advocates: State and local efforts to protect our waters are now more important than ever,” he writes.