Interested Parties Memo -- Myths and Facts About the Clean Water Rule

On September 12, 2019 the Trump administration announced the finalization of its repeal of the 2015 Clean Water Rule, leaving streams, wetlands, and drinking water sources across the country vulnerable to pollution. Some recent reporting on this repeal has relied on mischaracterizations and myths about the Clean Water Rule, mostly pushed by opponents of the rule.

Myth #1: The Clean Water Rule expanded the number of streams and wetlands that are protected by the Clean Water Act. 

Fact #1: The Clean Water Rule only protects waters that were historically covered by the Clean Water Act, It did not expand the number of water resources under Clean Water Act jurisdiction. The Clean Water Rule just made it easier to determine which waters fall within Clean Water jurisdiction, ensuring those waters are protected.

The Clean Water Act has protected tributaries, streams, and wetlands since 1972 as these smaller water bodies are vital to the health of larger rivers, lakes, and bays. The law was never intended to only cover large bodies of water like Puget Sound, the Colorado River, or the Everglades. The reason is simple: pollution flows downstream, it won’t just be contained in small streams and wetlands. Pollution in smaller upstream waters will impact larger waters.

Myth #2: Small farmers are the biggest beneficiary of the repeal of the 2015 Rule.

Fact #2: Farmers and normal farming and ranching activities are already exempt from the Clean Water Act. The big winners of the repeal are real estate developers, the fossil fuel industry, and other industries who will benefit from being able to pave over streams or fill in wetlands without a permit.

Myth #3: The Clean Water Rule regulated puddles, ditches and farm ponds.

Fact #3: The notion that the Clean Water Rule regulated puddles, ditches, and farm ponds is nothing more than a corporate agribusiness talking point. The 2015 Rule clearly defined which waters were protected and which were not. The Rule covered waters such as tributaries to traditionally navigable waters and waters adjacent to protected waters. The Clean Water Rule specifically excluded artificial farm ponds, ditches, artificially irrigated areas, and puddles, despite what corporate agribusiness interests have claimed. 

The Clean Water Rule also maintained the Clean Water Act’s specific exemptions for normal farming and ranching activities -- including plowing and farm runoff -- from needing a permit, despite what corporate agribusiness interests have claimed.

Myth #4: Small streams and unconnected wetlands don’t need to be protected.

Fact #4: Established science shows that smaller upstream waters impact larger downstream bodies of water and drinking water sources. EPA based the 2015 Clean Water Rule on the Connectivity Report, a synthesis of 1200 peer-reviewed scientific studies. The overwhelming conclusion was wetlands, ephemeral and intermittent streams, and other smaller water bodies directly impact the health of larger, downstreams waters like rivers, lakes, and bays. 

Myth #5: EPA didn’t meaningfully engage stakeholders in developing the 2015 Rule.

Fact #5: EPA’s engagement was deep. In 2014 EPA held meetings with more than 400 stakeholders including states, tribes, industry groups, and advocates The agency also hosted a public comment period that lasted more than 200 days and garnered nearly a million comments.

Myth #6: The majority of Americans oppose the 2015 Clean Water Rule.

Fact #6: The 2015 Clean Water Rule is incredibly popular. 88% of the nearly one million comments submitted in 2014 were in support of the Clean Water Rule. In 2017, more than 500,000 people opposed EPA’s proposed repeal and more than 550,000 people opposed EPA’s proposed replacement for the 2015 Clean Water Rule.

80% of small business owners supported the proposed Clean Water Rule, 83% of hunters and anglers surveyed by a bipartisan team thought that EPA should apply the rules and standards of the Clean Water Act to smaller, headwater streams and wetlands and Similarly, 80% of voters nationwide supported the rule.

Myth #7: The Clean Water Rule was illegal.

Fact #7: The 2015 Clean Water Rule was grounded in the law, Trump’s proposed replacement is not. In 2015 EPA followed Justice Anthony Kennedy’s concurring opinion in Rapanos v United States that waters that significantly affect traditionally navigable waters’ physical, chemical, or biological condition are protected by the Clean Water Act. The federal courts and the two previous administrations have uniformly found that Justice Kennedy’s standard appropriately identifies waters covered by the Act.

For its replacement rule, the Dirty Water Rule, the Trump administration instead is following a separate opinion in Rapanos, which relied on a 1954 dictionary definition of “waters,” was not accepted by the majority of the Supreme Court, and has never been used as the exclusive standard to determine if waters are protected under the Clean Water Act.

Michael Kelly