Why the US Clean Water Rule Needs to Stay in Place

A headwater stream in the Rio Grande watershed in New Mexico. Photo: Sandra Postel

We have many lessons to learn from the tragedies wrought by Hurricane Harvey, but among the most important is that a broken water cycle increases risks to our communities and economies.

Floodplains, tributaries, wetlands, lakes, ponds, rivers and groundwater form an interconnected whole that helps ensure clean, safe, reliable water supplies.  A well-functioning water cycle naturally moderates both floods and droughts, reducing societal risks from both.

The Trump administration’s proposal to rescind the Obama-era Clean Water Rule would further break the natural water cycle just at the time we need to double-down on repairing it.

The motivation for the Clean Water Rule arose from Supreme Court decisions, in particular the 2006 case of Rapanos v. United States, that sowed consideration confusion about which waters came under the jurisdiction of the federal Clean Water Act, and which did not.

Both the Environmental Protection Agency (EPA) and the Army Corps of Engineers (the Corps) were spending considerable time and tax dollars determining whether or not a particular stream or wetland was protected under the Act. Just between 2008 and 2015, the agencies had to make some 100,000 case-by-case determinations, causing backlogs and delays.

The 2015 rule, also known as the Waters of the United States (WOTUS) rule, clarified the definition and expanded protection to headwater streams and some 20 million acres (8 million hectares) of wetlands. An EPA-Corps economic analysis of the rule published in May of that year found that while the additional water protections would have negative economic impacts on certain industries and farm enterprises, the benefits to society from cleaner and more secure water supplies exceeded those costs.

In June 2017, as the Trump administration moved to rescind the rule, EPA Administrator Scott Pruitt ordered agency staff to redo the economic analysis and omit the half billion dollars of benefits associated with wetland protection, according to reporting by the New York Times.

Scientists are speaking out against the repeal of the 2015 Clean Water Rule.

A letter already signed by more than 320 scientists (including me) from academia, state agencies, nonprofits, and the private sector notes that more than 1,200 peer-reviewed publications clearly establish “the vital importance” of wetlands and headwater streams “to clean water and the health of the nation’s rivers.”

In an amicus curiae (literally, friend of the court) brief to the Supreme Court in the Rapanos case, ten scientists (including me) argued that “when it comes to the connection of tributaries, streams, and wetlands to navigable waters and interstate commerce, there is no ecological ambiguity….[I]f the Clean Water Act does not protect these resources, then it does not protect navigable waters from pollution, and it cannot achieve its goals.”

But the Trump administration is once again pushing sound science aside in its attempt to roll back regulations.

“It is unacceptable that the current administration has proposed dismantling the rule without scientific justification,” said Laura Craig, director of science and economics with the national conservation group American Rivers. “Rescinding the Clean Water Rule will negatively impact streams and wetlands that are essential for clean drinking water and the health of America’s rivers.”

A repeal of the rule would also be a blow to the outdoor recreation industry, which drives some $887 billion in annual spending and supports some 7.6 million jobs. Hunters, fishermen, conservationists, recreation-based businesses, and others submitted one million public comments during the review process leading to the 2015 rule. The new definition was critical, many thought, to reversing the tide of wetland habitat loss.

“If the president intends to fulfill his stated goal of having the cleanest water, he should direct his administration to identify paths forward for defending and implementing the Clean Water Rule based on sound science, regulatory certainty, and the national economic benefits of clean water,” said Whit Fosburgh, president and CEO of the Theodore Roosevelt Conservation Partnership, in a press release issued June 27 2017. “Instead, today’s action to rescind the rule puts at risk the fish and wildlife that rely on more than 20 million acres of wetlands and 60 percent of the country’s streams, while the process for ensuring the protection of these clean water resources remains unclear.”

EPA has extended the public comment period for its proposed repeal of the Clean Water Rule to September 30, 2017.   Comments can be submitted at www.regulations.gov using docket number EPA-HQ-OW-2017-0203.

Meanwhile, the Trump administration is proceeding with the second step in its repeal-replace strategy, which is to write a new (and presumably narrower) definition of “waters of the United States.” The Corps and EPA are holding ten teleconferences during September and October to gather additional input. The tenth of these is slated for the general public.

Sandra Postel is director of the Global Water Policy Project, co-creator of Change the Course, and author of the forthcoming book Replenish: The Virtuous Cycle of Water and Prosperity.

Changing Planet


Meet the Author
Sandra Postel is director of the Global Water Policy Project and author of Replenish: The Virtuous Cycle of Water and Prosperity. From 2009-2015, she served as Freshwater Fellow of the National Geographic Society. Sandra is also co-creator of Change the Course, the national water stewardship initiative awarded the 2017 US Water Prize for restoring billions of gallons of water to depleted rivers and wetlands. The recipient of several honorary degrees, she works to bridge science, policy, and practice to promote innovative ways of securing water to meet both human and ecosystem needs.