EPA Announces Waterway Protection Rollback
In the latest action since the Trump administration announced the roll back of nearly 95 environmental rules, the U.S. Environmental Protection Agency has stated it will be reducing the number of waterways receiving federal protection under the Clean Water Act.
"All states have their own protections for waters within their borders, and many regulate more broadly than the federal government," said EPA Administrator Andrew Wheeler.
"Our new rule recognizes this relationship and strikes the proper balance between Washington, D.C., and the states," he added. "And it clearly details which waters are subject to federal control under the Clean Water Act and, importantly, which waters falls solely under the states' jurisdiction."
About the Clean Water Act
According to the EPA, the CWA—also known as a National Compliance Initiative—was developed in 2000 in conjunction with state co-plaintiffs to act against municipal sewer systems with CWA violations.
Since the creation of the NCI, the EPA is reported to have taken action against 97% of large combined sewer systems, 92% of large sanitary sewer systems and 79% of Phase 1 municipal separate stormwater systems.
In May 2015, former President Barack Obama issued an executive action that broadened the definition of U.S. waters to cover about 60% of the nation’s waterways in order to expand federal limits on pollution in wetlands and small waterways.
By the end of fiscal year 2019, the EPA announced that it was discontinuing Keeping Raw Sewage and Contaminated Stormwater Out of Our Nation’s Waters NCI at the end of the year, as the agency believed the NCI no longer presented a significant opportunities to correct water quality impairment nationwide.
Although the EPA added that it would continue to provide enforcement, monitor implementation of long-term agreements and compliance assurance efforts as a part of the core enforcement program.
In August 2019, PaintSquare Daily News reported that the EPA proposed a rule for the CWA, seeking to “increase the transparency and efficiency of the 401 certification process and to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation” at the Council of Manufacturing Associations Summer Leadership Conference in Charleston, South Carolina.
Following Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” made by Trump in April, the EPA proposed to modernize and clarify both the timeline and scope of CWA Section 401 certification review and action, as to avoid misperception and unnecessary delays in infrastructure projects.
“Under President Trump, the United States has become the number one oil and gas energy producer in the world, while at the same time continuing to improve our air quality,” said Wheeler at the time.
“Our proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act. When implemented, this proposal will streamline the process for constructing new energy infrastructure projects that are good for American families, American workers and the American economy.”
The EPA is expected to finalize the new Section 401 rule by May 2020 and intends to return work on the NCI’s core program sometime in FY2020.
What’s Happening Now
At the end of January, the Trump administration announced that it had finalized a rule to remove environmental protections from ephemeral bodies of water—meaning bodies of water that only form after rainfall or only flow part of the year. However, the revision also applies to streams, wetlands, groundwater, waste treatment systems and priorly converted cropland and farm watering ponds.
While the decision has reportedly pleased farmers, fossil fuel producers and real estate developers who previously disagreed with Obama-era rules, 14 states have sued the EPA regarding the change, claiming that the decision ignores science, legislation and removes basic protections under the CWA.
In fact, the EPA Science Advisory Board wrote a draft letter regarding the rule change, stating it “decreases protection for our Nation's waters and does not support the objective of restoring and maintaining 'the chemical, physical and biological integrity' of these waters."
Already, Pittsburgh and St. Louis are among some of the few cities in the nation to have completed negotiations regarding their current sewage agreements while Cleveland; Seattle; Kansas City, Missouri; South Bend, Indiana; and Chattanooga, Tennessee, among others, also intend to hold meetings with the agency on the matter.
Some cities that have renegotiated have been reported to receive extensions to reduce wastewater overflows. However, other cities, such as Akron, Ohio, Dallas and Washington, D.C., which have rehabilitation or tunnel projects in the works to mediate overflows and flooding, are considering whether to renegotiate as to avoid creating more work.
The rule is slated to be replaced by Trump’s “Navigable Waters Protection Rule.” Both the EPA and the U.S. Army is slated to host a public webcast for the public to help explain the rule’s key elements on Feb. 13.