EPA Rolls Back Federal Clean Water Protections

Trump administration repeals 2015 rule expanding the definition of waters protected by US law
September 17, 2019

Environmental groups and business interests in Indiana have come out strongly on opposite sides of the decision to repeal a rule that expanded the definition of water protected by federal law.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers repealed the 2015 “Waters of the United States” rule, which placed eight broad categories of waterways, such as tributaries and interstate waters, under federal Clean Water Act protection instead of more lenient state environmental regulations.

“The rollback of the Waters of the US rule makes it easier to pollute our waters and destroy our wetlands,” said Indra Frank, director of environmental health and water policy for the Hoosier Environmental Council. “This step ignores the obvious fact that water flows into water, that water is all interconnected. The rollback basically says you’re not allowed to pollute big rivers, but it’s ok to pollute small streams that flow into the big rivers.”

Opponents of the WOTUS rule, including many agricultural interests, argued that the definitions were ambiguous and would allow the federal government to pick and choose when it would intervene.

The perceived “regulatory uncertainty” was used as justification for the repeal of the 2015 definitions and a return to a more streamlined interpretation of protected waters.

This is a screen grab of the WOTUS rule published in the Federal Register.
The 2015 "Water of the United States" rule expanded the definition of waterways under federal protection.

“Today, EPA and the Department of the Army finalized a rule to repeal the previous administration’s overreach in the federal regulation of U.S. waters and recodify the longstanding and familiar regulatory text that previously existed,” said EPA administrator Andrew Wheeler on Sept.12.

Indiana state officials welcomed the repeal and a future role in establishing new protection definitions.

The commissioner of the Indiana Department of Environmental Management, whose agency’s mission statement calls for a balance between regulations that protect human health and the operations of economic activities “vital to a prosperous economy,” welcomed the return to the previous regulatory definition.

“The actions taken today will provide needed certainty for state agencies, businesses and residents,” said IDEM commissioner Bruno L. Pigott. “We particularly commend the effort EPA and Army Corps is making to engage the states, as co-regulators, in the development of a revised definition of WOTUS.”

Bruce Kettler, the head of the state’s agricultural department and a former executive for the agricultural chemical companies Dow Agrosciences (now part of Corteva Agriscience) and Beck’s Hybrids, also welcomed the repeal of the rule, saying that the state trusted its landowners to keep waters clean.

“This repeal closes the books on what could’ve been one of the greatest displays of federal overreach in recent history,” said Kettler. “While it’s important to maintain clean water, the 2015 WOTUS rule contradicts how we approach conservation in Indiana, which is to support and encourage the voluntary efforts of landowners.”

According to state data, the number of total water bodies with impairments has doubled since 2010. This map shows the bodies of water listed as category 5 in 2018, meaning individual designated use is impaired or threatened and requires a government-approved maximum pollutant level. Source-IDEM

Public and private research on the health of Indiana’s waters shows the state’s hands-off water quality efforts have not been effective.

Many farming organizations came out against the 2015 rule even though they have largely been exempted from Clean Water Act regulations.

“Farmers and ranchers share the goal of ensuring clean water, but the 2015 Waters of the United States rule was unreasonable and unworkable,” said president of the American Farm Bureau Federation Zippy Duvall in a statement. “It made conservation more difficult and created huge liabilities for farmers.”

The U.S. Poultry & Egg Association, National Chicken Council, National Turkey Federation and many other agricultural organizations filed suits in several states to stop the 2015 rule from taking effect.

The Obama-era rule never went into effect in Indiana. The state is one of 28 states that were never bound by the 2015 definitions due to legal challenges.

“As soon as the Waters of the US rule was written there were entities that took that rule to court. It didn’t get applied here. I think Indiana and all of the states would have benefited if that rule had gone into full effect,” said Frank. “Over the last 10 to 15 years our water quality improvements have stalled, and, in some cases, gotten worse.”

The 2015 WOTUS rule definitions were never implemented in Indiana and 27 other states.

According to the U.S. Geological Survey, about 40% of land in the U.S. is used for agriculture of all types.

One of the leading sources of water pollution in U.S. waterways is agricultural runoff. That’s when things like animal waste, fertilizer or pesticides that leave farm fields and because of rain or irrigation and enter the waterways.

State data shows that farming has affected more of the state’s waterways since 2010.

Under the Clean Water Act, states are required by law to provide information on the water quality status of all waters in the state every two years. They must also submit a list of waters the state deems impaired or threatened.

Between 2010 and 2018 the miles of streams affected by animal and livestock feeding operations and agriculture doubled. Permitted runoff from confined animal feeding operations affected 44% more miles of streams.

IDEM listed commercial fertilizer applications, confined animal feeding operations and manure applications as major sources of ground water contamination with the highest priority. All three could affect human health or the environment.

Earlier this year, IDEM cited three hog farms in eastern Indiana for manure spills and other runoff that resulted in two fish kills in the Salamonie River. They were charged a $15,000 penalty for killing more than 3,100 fish.

State officials welcomed the repeal of the 2015 WOTUS rule, saying Indiana waterway protections depend on voluntary efforts from landowners.

IDEM also proposed a $16,000 civil penalty on a Union City hog farm after fluid from hog carcasses entered a creek and killed nearly 3,000 fish last September.

Agriculture is not solely responsible for pollution in Indiana waterways. Many of the state’s other economic drivers contribute to water pollution as well.

Over the last decade, the number of Indiana waters with impairments has more than doubled.

In 2010, the state reported 3,149 total waterbody impairments. Nearly a decade later the number jumped to 6,738.

The number of miles of streams affected by those impairments has also risen drastically.

Indiana’s 2010 report noted 12,717 miles of streams were impaired by E. coli contamination. Some strains of the bacterium produce a powerful toxin that can cause severe illness. In 2018, the state reported 24,687 miles of streams were impaired by E. coli contamination.

State data also indicates a rise in stream areas where fish are contaminated with PCB, a group of persistent manmade chemicals that can cause cancer and have other toxic effects. The number jumped from 3,473 miles in 2010 to 5,284 miles in 2018.

Numbers for other impairments like ammonia, oxygen depletion, unknown source and nonpoint source contamination have all greatly increased since 2010.

Environmental advocacy groups like the National Resources Defense Council, Sierra Club and Earthjustice said they would challenge the rule repeal in court.

“Fifty years after the Cuyahoga River fire that inspired the Clean Water Act, President Trump’s administration wants to turn back the clock to the days of poisoned flammable water. This is shameful and dangerous,” said Earthjustice president Abigail Dillen in a statement. “No one is above the law, including the EPA and the Army Corps of Engineers. Earthjustice will use the full strength of our nation’s bedrock environmental laws to protect communities and the environment. This administration’s industry-fueled giveaways to dirty special interests cannot be allowed to stand.”

EPA Rolls Back Federal Clean Water Protections