Thursday 18 April 2019

Executive Order is a clear move to benefit major oil and gas companies and expedite controversial infrastructure against the wishes of states.

President Trump released an Executive Order last week that seeks to restrict every state’s authority under the Clean Water Act. This authority allows state regulators to assess whether a major project, like a pipeline or dam, would have a negative impact on the state’s waterways - or more specifically, its water quality standards. This Order is even more alarming given a string of Executive Orders released from President Trump, such as the one giving himself the sole authority to approve major pipelines crossing international borders -- which was previously the responsibility of the U.S. Department of the State. 

Under the Clean Water Act (Sec. 401), a federal agency cannot issue a federal permit or license for a project that runs through state waters without first obtaining the state’s approval of the project. In 2017, Washington State used this authority to stop the construction of a coal terminal that would have been detrimental to the state’s waterways. Likewise, New York has used this authority to stop natural gas pipelines from coming through the state - citing concerns for the state’s streams and wetlands. Other states, like Maryland, have used this authority to “place conditions” - or certain water quality protections - on a major project.

State authority to review, place conditions on, or deny major projects coming through their borders is explicit under the Clean Water Act and has been strongly backed by the court system. This includes two major Supreme Court cases that resound the importance of state authority over these types of projects. 

The Executive Order is a clear move to benefit major oil and gas companies, like Energy Transfer, and expedite controversial infrastructure against the wishes of states - like President Trump’s proposed border wall. 

If implemented, the Executive Order seeks to make it harder for states to conduct an adequate review of major projects that cross the state’s waterways. In fact, five of the six policies established under the Executive Order have nothing to do with clean waterand everything to do with encouraging speedy actions, having a “single point of accountability” (i.e. FERC) and promoting energy companies. Only one of the six policies mentions “effective stewardship of America’s natural resources.”

The Executive Order prioritizes economic considerations over existing clean water protections. The whole purpose of the Clean Water Act was to improve the quality of the country’s waterways -- which were heavily over-polluted at the time of its passage. It’s the primary vehicle that ensures the health and safety of our waterways, yet this Order is seeking to heavily restrict the only section that gives states robust authority to protect their own waterways. More specifically, it orders the U.S. Environmental Protection Agency (EPA) to issue a Guidance that will “clarify” any existing practices related to state authority under the Clean Water Act (i.e. the ability to conduct a thorough review of major projects) in light of the new policies under the Executive Order that shift the focus away from clean water. 

Not only is this a major threat to the successes we’ve had under the Clean Water Act thus far, it’s a slap in the face to state sovereignty. States have the greatest access to information regarding their own waterways and the best ability to determine whether a major project – such as the relicensing of the Conowingo Dam  may have an impact on water quality. Despite this, the Executive Order would hinder every state’s ability to determine which projects can be allowed near or through its own waterways. 

We will be working closely with our region’s states to assess and challenge the Guidance EPA’s plans to issue this summer. We anticipate that this Executive Order will be challenged in court as it is a clear attempt to strip states’ explicit authority granted under the Clean Water Act.

Waterkeepers Chesapeake comments on rule support a broad, science-based definition of the waters of the U.S. and urges EPA to strengthen the rule to ensure full protection of the nation’s waters.  

The Environmental Protection Agency’s (EPA) proposed a new rule that slashes Clean Water Act protections for millions of people by redefining “waters of the U.S.” In this blatant giveaway to polluting industries, in the Chesapeake region, streams and tributaries in the upper reaches of the Susquehanna, Potomac, Shenandoah, James and many other rivers, as well as a vast number of wetlands, would not receive protections under the Trump administration’s scheme to gut the Clean Water Act.

On April 15, Waterkeepers Chesapeake submitted comments opposing the EPA’s proposed re-definition of the “waters of the U.S.”, through the elimination of the “significant nexus” test and the abandonment of the overwhelming scientific findings that was the basis for the current rule. Waterkeepers Chesapeake also argued against the EPA’s continued efforts to categorically exclude a large number of waters because such exclusions are not grounded in science and law. In particular, EPA’s approach of excluding groundwater is not warranted by science as demonstrated by the many comments by individual members of EPA’s Science Advisory Board (SAB). Finally, Waterkeepers Chesapeake objected to EPA continuation of the so-called “waste treatment” exclusion which allows mining and coal interests to use our precious water resources as dumping grounds for their wastes.

The EPA’s data shows that at least 18% of streams and 51% of wetlands nationwide would no longer be protected under the Clean Water Act under this rule. In the Chesapeake Bay Watershed alone, at least 34,000 acres of non-tidal wetlands and headwater streams would lose protections.

As EPA research and reporting repeatedly shows year after year, we still have a long way to go in applying the Clean Water Act and meeting its directives. We still discharge toxics into our waters. Agricultural discharges that are almost wholly unregulated account for nearly half of the pollution entering waterways and a significant portion of the waters that are currently failing to meet basic standards of cleanliness.

EPA summary of states’ reported water quality data shows that states have a poor record of assessment. But of the waters assessed, 53% of assessed rivers and streams, 68% of assessed lakes, and 66% of assessed bays/estuaries are failing to meet one or more water quality standards. This data shows that we have not eliminated nor controlled discharges of pollutants into our nation’s water.

Wetlands are critical ecosystems to wildlife, and are essential as nature’s water-cleaning and flood control mechanisms. In just the last decade, agencies reported that we had lost over 50% of our wetlands nationwide. In parts of the Midwest and coastal areas, the figure is as high as 90% or more with attendant disastrous results for clean water.

The Clean Water Act’s comprehensive protections are so critical to the well-being of the nation and its citizens, and still sorely needed. Waterkeepers Chesapeake supports EPA’s science-based efforts, within the law, to ensure that all waters that are or can be affected by pollution be protected consistent with the intent and purpose of Congress in passing the Clean Water Act. We urge EPA to strengthen the rule as outlined in our comments (and summarized below) and to abandon the ill-conceived and unsupported categorical exclusions portion of the rule.

Comments Summary:

“Waters of the U.S.” - Waterkeepers Chesapeake believes that the proposed definition of “waters of the United States,” constitutes an abandonment of the scientific and technical data that the EPA collected in determining the existing definition and results in an arbitrary and capricious decision.

Tributaries - Waterkeepers Chesapeake opposes the decision to only include tributaries with perennial or intermittent streams in the definition of waters of the United States. There is no scientific or legal reason to exclude tributaries of any water that is identified as a water of the United States through this rule regardless of the frequency of the tributary’s flow. Tributaries affect downstream waters, and if the downstream water is a water of the United States, then its tributaries must be protected under the Clean Water Act. The exclusion of any tributary that does not provide at least a perennial or intermittent flow to traditional navigable water is another arbitrary and capricious decision that ignores volumes of scientific data.

Adjacent wetlands - Waterkeepers Chesapeake opposes the definition of adjacent wetlands to mean “wetlands that abut or have a direct hydrologic surface connection to other ‘waters of the United States’ in a typical year”. SAB previously concluded that a more scientifically accurate definition of adjacency would include the outer extent of the flood plain and all riparian areas not merely  defined by the physical touching of wetlands to waters of the United States.

Categorical exclusions - Waterkeepers Chesapeake objects to EPA’s proposal to exclude whole categories of water from receiving Clean Water Act protections. Categorical exclusions are not supported by Supreme Court case law nor the language of the Clean Water Act. While some members of the Supreme Court expressed concern over ensuring that certain waters, specifically wetlands, had a connection to waters of the U.S., at no time has the Court addressed wholesale exclusion of certain types of waters. While EPA may desire categorically excluding some waters for the sake of convenience, such a result is not supported by case law and is contrary to the intent and purpose of the Clean Water Act.

  • The groundwater exclusions are not fully-supported from a scientific perspective and may lead to regulatory confusion. EPA should revise the proposed rule to provide that groundwater is protected as a water of the U.S. where it is hydrologically connected to surface water in a way that is not insignificant. 
  • Waterkeepers Chesapeake strongly objects to the “waste treatment exclusion” for waters of the U.S. that should receive full Clean Water Act protections. This exclusion allows mining, coal or utility industries to dump pollutants into the stream, lake, or wetland. Waterkeepers Chesapeake presses EPA to eliminate this exclusion not only because it promotes continued permitting of polluting and damaging practice, but also because EPA never allowed for public notice and comment on this section of the rule.


Watekeepers Chesapeake

Waterkeeper Alliance

Fact Sheets on Impact of Rule on 12 Watersheds

(Washington, D.C.)– President Trump’s executive order, issued today, changes the existing Clean Water Act’s 401 Water Quality Certification process that gives states the power to protect their waterways from federally licensed projects that could affect water quality.  Betsy Nicholas, executive director of Waterkeepers Chesapeake, released the following statement on how the executive order would affect federal permits and the current process to relicense the Conowingo Dam:

“This executive order effectively hamstrings states from being able to protect their waterways and promote clean water. If implemented, the order would allow the federal government to effectively rubber stamp projects that would harm water quality, including pipelines and dam recertifications, and hamper states’ ability to install measures to reduce pollution.

Some states, including Maryland, in the case of the relicensing of Conowingo Dam, have been using their authority under Section 401 of the Clean Water Act to protect their communities and waterways from harmful projects approved by the federal government. This executive order would tip the scales in favor of corporations applying for these permits and strip states of their ability to hold them accountable for the pollution they cause. For Conowingo Dam, Exelon would be able to operate the dam for the next 50 years without needing to take any measures to protect the Susquehanna River and Chesapeake Bay from pollution. This is unacceptable, and we look forward to seeing this executive order overturned in court.” 

Media Contact: Betsy Nicholas, betsy(at), Waterkeepers Chesapeake, 202-423-0504


Waterkeepers Chesapeake is a coalition of eighteen independent Waterkeeper programs working to make the local waterways of the Chesapeake and Coastal Bays swimmable and fishable.