Is the Water All Right?
In a speech at the American Farm Bureau convention in 2020, President Trump declared, “I terminated one of the most ridiculous regulations of all.” The president was talking about Waters of the United States (WOTUS), or the 2015 Clean Water Rule, which the Obama administration created to better enforce the Clean Water Act, one of the country’s most essential and effective environmental laws.
Like other environmental regulations, WOTUS was necessarily complex and grounded in science. But the reason for it was simple: keep U.S. waters clean. So what could be so bad about a law to stop water pollution that the Trump administration would decide to repeal it?
Earthjustice is representing tribes and environmental groups in a legal challenge to this attack on water protections. I asked our experts on the matter to address the president’s remarks.
What Trump said:
“That was a rule that basically took your property away from you.”
“No it didn’t,” scoffs Earthjustice attorney Janette Brimmer. “The Clean Water Act says water should be clean, that we should keep it clean, and that we should restore it when we make it dirty.” Brimmer explains that the government developed the Clean Water Rule to provide the basis for why the Clean Water Act should apply to all natural waterbodies in the U.S.
“All that rule did was make sure our water protections are backed by science. That science shows that waters are connected,” she says. “That’s how the world works – waters go into streams, groundwater, and wetlands. They end up in rivers and oceans.”
As for how the rule applies to water on private property, Brimmer adds: “The only time it says ‘prohibited,’ it also says ‘without a permit.’ You’d do the same thing to build a garage on your property or get a license for your car. That’s not taking your property away.”
What Trump said:
“This rule gave bureaucrats virtually unlimited authority to regulate stock tanks, drainage ditches, and isolated ponds as navigable waterways … Sometimes, you’d have a puddle – a little puddle. And they’d consider that a lake.”
“That’s just false,” Brimmer argues. “The Clean Water Rule did not give unlimited authority to regulate those things. Stock tanks? No. Stock ponds? If the pond your animals drink from was something you just dug out and filled with water, in most cases that would not be regulated.”
“But just because your cow is sipping from it doesn’t mean it’s not a natural resource,” says Brimmer. “For example, some drainage ditches used to be streams and can still flow into navigable waters. Using those a certain way doesn’t dictate what’s happening downstream.”
What Trump said:
The 2015 Clean Water Rule “would give the federal government vast and unlimited power to restrict farmers’ access to water.”
“There is no evidence that farming practices have ever been affected by the Clean Water Rule,” says Earthjustice strategist Alejandro Davila. He notes that while farming is almost completely exempt from the reach of the Clean Water Act, there are still practical reasons (and matters of courtesy) landowners should consider before polluting waters, even if they are on their property:
“If a stream cuts through your property and flows into a neighbor’s property, do you just dump your run-off into it? No, that would make you a terrible neighbor.”
What Trump said:
“[T]his authority rightfully belongs to the states, not the bureaucrats in Washington, D.C.”
“The states used to have this authority. They just didn’t do a very good job. Rivers were literally catching fire because of all the water pollution,” Davila says, recalling the Cuyahoga River fires that helped set Congress on an urgent, bipartisan path to enact the Clean Water Act in 1972. “The only thing the Clean Water Rule did was keep streams, rivers, and lakes from being used as sewers like they used to.”
Brimmer explains that the Clean Water Act was designed for cooperation between state and federal governments. The Clean Water Rule was created as a guide for state governments to enforce the federal minimum standards for all U.S. waters – including bacterial standards for drinking water.
On this point, it’s worth highlighting that the Centers for Disease Control and Prevention report 4 to 32 million cases of waterborne illness in the U.S. each year. The agency admits that the frequency is likely higher. Their figures don’t include illness from non-public drinking water systems, like private wells, recreational waters, and waters used for irrigation, medical uses, or building systems – data that state governments are best suited to collect but currently don’t.
Under President Trump’s Dirty Water Rule (aka the Navigable Waters Protection Rule), all of these water supplies are at risk without the comprehensive protection of the Clean Water Act.
What Trump said:
“Water is the lifeblood of agriculture, and we will always protect your water supply.”
Building on Davila’s sewer comparison, Brimmer shares an example of how Trump’s rule change actually threatens farmers’ water supplies. “All those foodborne illness outbreaks in 2019? That was tied to lettuce irrigated with contaminated water,” she says.
In 2019, three nationwide E. coli outbreaks originating in California’s Salinas Valley were traced to cattle excrement found in a grate two miles from the fields where contaminated lettuce was grown. Because the Trump Dirty Water Rule significantly reduces the waters covered by the Clean Water Act, including many that apply to farming, it sets the nation up for more such outbreaks in the future.
In some regions, according to Davila, as many as 90% to 95% of streams are now unprotected under the Dirty Water Rule. This is even more concerning when you consider that more than half of U.S. streams and rivers are already too polluted for swimming, drinking, or fishing.
So is the Trump administration really protecting U.S. waters for farmers or anyone else? Brimmer laughs at this question and lends one more insight:
“One of the phrases we hear a lot in this work is ‘fishable-swimmable.’ That’s what the Clean Water Act strives for – that you can swim in it, drink it, and all the critters in there are healthy and safe to eat. A lot of people don’t have that opportunity – to swing from a rope into a creek, to row out on a boat and go fishing. With the Trump administration rule, it’s going to be whack-a-mole. It’ll be a lot harder to know if those bodies of water meet those fishable-swimmable standards.”