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waters of the united states
Complying With Right-Wing Supreme Court, Biden EPA Guts Wetland Protections
"Congress and local elected officials must now step in and do more to protect clean water through durable legislation and state-based action," said one advocate.
Aug 29, 2023
Under a U.S. Supreme Court ruling condemned by clean water advocates earlier this year, the Environmental Protection Agency on Tuesday announced a revised rule that could clear the way for up to 63% of the country's wetlands to lose protections that have been in place nearly half a century under the Clean Water Act.
EPA Administrator Michael Regan said he had been "disappointed" by the 5-4 decision handed down in Sackett v. Environmental Protection Agency in May, but he was obligated under the ruling to issue a final rule changing the agency's definition of "waters on the United States."
As Common Dreams reported, the high court ruled in May that the Clean Water Act protects waters and wetlands that have a "continuous surface connection to bodies that are waters of the United States in their own rights," such as major rivers and coastlines.
Prior to the ruling, the Clean Water Act protected wetlands as long as they had a "significant nexus" to regulated waters, but the EPA rule removes that test from consideration when determining if a waterway should be protected. The rule will leave streams and tributaries—and the communities adjacent to them—without protections from pollution that can be caused by housing and business development, mining, pipeline construction, and a number of industries.
The ruling and resulting EPA rule reflected "the Supreme Court's disturbing pattern of striking down environmental regulations to serve industry interests," said environmental law group Earthjustice on Tuesday.
An EPA official toldThe Washington Post that an estimated 1.2 million to 4.9 million miles of ephemeral streams across the U.S. would immediately lose protections now that the final rule has been issued.
Julian Gonzalez, a water policy lobbyist with Earthjustice, told the Post that changing the rule is "not necessarily what they want to do" at the EPA, while Patrice Simms, the group's vice president of litigation for healthy communities, called the court's ruling a "politically motivated decision" that "ignores science and flies in the face of what almost everyone knows: that we all need clean water."
"The Supreme Court's right-wing supermajority's disastrous ruling in Sackett v. EPA reduced EPA's ability to protect our wetlands and waters from destruction and contamination," said Simms. "The new rule from EPA adjusts its existing regulations to comport with Sackett and reflects our dangerous new reality—one where mining companies, Big Ag fossil fuel developers, and other polluting industries can bulldoze and fill wetlands indiscriminately, harming our public health and ecosystems."
With state regulatory agencies and legislatures now empowered to determine how wetlands are protected, Earthjustice said waterways in states including Texas, Kentucky, Oklahoma, and Colorado are the most vulnerable to industrial pollution. States including Vermont, New York, and Minnesota currently have some of the strongest protections in place.
Marc Yaggi, CEO of Waterkeeper Alliance, said that with the climate and pollution crises becoming increasingly destructive, "there could not be a worse time to weaken the Clean Water Act."
"Intensifying droughts are wreaking havoc on agriculture, pollution and toxins are increasingly threatening water sources nationwide, and millions of people are contending with dangerously contaminated drinking water," said Yaggi. "Congress and local elected officials must now step in and do more to protect clean water through durable legislation and state-based action."
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EPA Proposal Could Embolden Industry to 'Destroy Wetlands and Pollute Our Waters'
"We have seen states like Florida work with the Trump administration, cutting corners to unlawfully take this permitting authority from federal agencies, with disastrous consequences," noted one lawyer.
Jul 19, 2023
An environmental law group on Wednesday sounded the alarm over a proposed Biden administration rule intended to "streamline and clarify the requirements and steps necessary for states and tribes to administer programs protecting waterways from discharges of dredged or fill material without a permit."
Earthjustice warned in a statement that the new U.S. Environmental Protection Agency (EPA) proposal—for which the administration will now accept and consider public comment—could "allow more pollution and reckless development" in U.S. waterways and wetlands.
The rule pertains to Clean Water Act (CWA) Section 404 permitting. While the U.S. Army Corps of Engineers administers it for most of the country, three states—Florida, Michigan, and New Jersey—have been granted the authority to run their own programs with federal oversight.
"EPA must ensure protections for waters and affected communities remain in place through this process, rather than just respond to states' and industry predilection."
However, as E&E Newsreported in May, "at least two Republican-led states, Alaska and Nebraska, and one led by a Democrat, Minnesota, are on a quest to oversee a dredge-and-fill permitting program that influences construction projects with implications for federally protected waters."
E&E News noted that the EPA confirmed it was "having discussions with the trio of states about the possibility of shifting primacy over the permitting program" as the agency continued to work on the proposal that was unveiled Wednesday.
EPA Assistant Administrator for Water Radhika Fox said Wednesday that the pending rule "will support co-regulator efforts to administer their own programs to manage discharges of dredged or fill material into our nation's waters."
Meanwhile, Julian Gonzalez, senior legislative counsel for Earthjustice's Healthy Communities program, argued that "EPA must ensure protections for waters and affected communities remain in place through this process, rather than just respond to states' and industry predilection without considering the pitfalls and reduced water protections that may follow."
"Most recently we have seen states like Florida work with the Trump administration, cutting corners to unlawfully take this permitting authority from federal agencies, with disastrous consequences," he said. "It is up to EPA to ensure that it will not happen again. Florida will not be the last state that tries to erode federal oversight of our waters and wetlands by taking over 404 permitting while avoiding accountability."
During former President Donald Trump's final months in office, Republican Florida Gov. Ron DeSantis—now one of Trump's competitors for the GOP's 2024 presidential nomination—successfully sought to assume control of 404 permitting for the state, which outraged green groups including Earthjustice.
As Bloombergreported in April:
The takeover was a big bet that states can both streamline development and better control water pollution than the federal government can. It has provided an early window into how DeSantis might view environmental regulation as president if he decides to run.
But two-and-a-half years into the state takeover, it isn't yet the deregulatory panacea state officials and the EPA had hoped for.
Gonzalez asserted Wednesday that "EPA must retain robust oversight of the 404 permitting process, set strong minimum standards that all states must meet before they can assume a 404 program, and ensure this rule does not result in lesser federal protections under the CWA and other protective laws triggered by federal permits, like the Endangered Species Act."
"EPA must ensure that the final version of this rule reflects the concerns of affected communities, which have been fighting attacks on the Clean Water Act, and who have not been consulted on this issue at all," he added. "A weak framework for 404 assumptions will further embolden the industry's deregulatory agenda to destroy wetlands and pollute our waters in the name of profit. We look forward to giving EPA additional feedback on this important rule."
The EPA proposal comes after the U.S. Supreme Court's right-wing majority in May issued a ruling in Sackett v. EPA that Earthjustice called "a catastrophic loss for water protections across the country and a win for big polluters, putting our communities, public health, and local ecosystems in danger."
The high court was criticized for taking the case as the EPA was working on a new "waters of the United States" (WOTUS) rule that was finalized in December—and which Republicans in Congress, with the help of a few Democrats, recently tried to kill, provoking a veto from Biden.
Despite the veto, congressional opponents of Biden's WOTUS rule have not given up. The GOP-controlled U.S. House Appropriations Committee Appropriations on Wednesday approved a sweeping bill for fiscal year 2024 that would repeal the policy.
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'Far-Right Radicalism': GOP Wants to Cut Funding for Clean Water Programs by 64%
"House Republicans should be ashamed of themselves," said one campaigner. "Their spending proposal threatens the very safety of our country's water and wastewater systems for the sake of political showmanship."
Jul 13, 2023
The advocacy group Food & Water Watch on Thursday called out Republicans on a U.S. House of Representatives Appropriations Committee panel for pushing a 64% cut to a pair of federal clean water funds in the next fiscal year.
"House Republicans should be ashamed of themselves," declared Mary Grant, the group's Public Water for All campaign director, in a statement. "Their spending proposal threatens the very safety of our country's water and wastewater systems for the sake of political showmanship."
The Interior, Environment, and Related Agencies Subcommittee, chaired by U.S. Rep. Mike Simpson (R-Idaho), on Thursday marked up a GOP appropriations bill for fiscal year 2024. A Republican fact sheet celebrates proposed "cuts to wasteful spending" and "claw-backs of prior appropriations," highlighting that it "reins in" the Environmental Protection Agency, "limits abuse of the Endangered Species Act," and provides protections for the fossil fuel industry.
The GOP proposal would slash appropriations for the Clean Water State Revolving Fund (CWSRF) and Drinking Water State Revolving Fund (DWSRF). The former provides low-interest loans for infrastructure projects like wastewater facilities while the latter provides assistance for initiatives like improving drinking water treatment and fixing old pipes.
Grant stressed that the targeted programs "are widely popular across the political spectrum and have historically enjoyed bipartisan support," as communities in every state rely on them "to make necessary improvements to keep water and sewer systems safe and reliable."
"We cannot allow our country to return to an era when rivers were on fire and communities across the country faced unmitigated toxic water threats."
For fiscal year 2023, the CWSRF got $1,638,861,000 and the DWSRF got $1,126,101,000, including congressionally directed spending projects; for next year, House Republicans want to allocate $535,000,000 and $460,611,000, respectively—a nearly $1.8 billion cut collectively.
"This far-right radicalism seeks to undermine the essential programs of a functioning government," Grant charged. "We cannot allow our country to return to an era when rivers were on fire and communities across the country faced unmitigated toxic water threats. The proposed cuts would leave many with unsafe water and exacerbate the nation's water affordability crisis, adding more pressure on household water bills at a time when families are already grappling with soaring costs for essential services."
The U.S. Senate, which is narrowly controlled by Democrats, "must reject this outrageous proposal out of hand," she said. "Safe water should not be a political bargaining chip, nor used to score cheap political points. Safe water is nonnegotiable."
Grant also called for passing the Water Affordability, Transparency, Equity, and Reliability (WATER) Act "to safeguard federal water funding from these foolishly political annual appropriations battles."
Reintroduced in March by U.S. Reps. Bonnie Watson Coleman (D-N.J.) and Ro Khanna (D-Calif.) along with Sen. Bernie Sanders (I-Vt.), the WATER Act is backed by Grant's group and more than 500 other organizations.
"This is not an issue of any single municipality, but for our entire country," said Watson Coleman, pointing to water crises in Flint, Michigan, and Jackson, Mississippi. "Due to a combination of climate change, outdated infrastructure, and systemic disinvestment in our most vulnerable communities, millions of Americans risk losing access to one of the most basic necessities for human life."
"Access to safe, clean water is a human right," she added. "The American water crisis will only get worse if we fail to act. I urge all my colleagues in Congress, Democratic and Republican alike, to support this pro-humanity legislation and pass it without delay."
Food & Water Watch executive director Wenonah Hauter noted at the time that when Congress and President Joe Biden passed the bipartisan infrastructure deal in 2021, "they provided a modest down payment on critical water improvements."
"But the investment falls far short of what our communities desperately need," she warned. "The WATER Act is a responsible, comprehensive approach to repairing our failing water and sewer systems that would provide water justice to communities large and small for decades to come. America needs the WATER Act now."
The organization's renewed demand for the legislation on Thursday came in the wake of recently released research from the U.S. Geological Survey suggesting that at least 45% of the country's tap water is contaminated by per- and polyfluorinated alkyl substances (PFAS), often called "forever chemicals" because they persist in the human body and environment for long periods.
It also followed a May ruling by the U.S. Supreme Court's right-wing majority that dramatically reduced which wetlands are covered by the Clean Water Act—a decision that Food & Water Watch legal director Tarah Heinzen said "rejects... established science in favor of corporate developers' profiteering."
The court was criticized for hearing the case as the Biden administration was still working on a new waters of the United States (WOTUS) rule, which was finalized in December. Notably, the GOP appropriations bill considered by the panel on Thursday would also repeal that regulation.
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