Breaking Rules: Attack on the Clean Water Rule in a Time of Water Scarcity

By Jasmine Wang*

If Cape Town reaches “Day Zero,” it will become the first major city in the world to shut-off its tap water supply due to severe drought.[i] Although “Day Zero” has been pushed to 2019, in part due to severe water use restrictions that limit residents to only one-sixth of an average American’s water consumption, it remains a very real risk for Cape Town’s future.[ii] Cape Town should serve as another reminder (in addition to California’s recent multi-year drought, and Sao Paulo’s water shortage crisis in 2015) that water scarcity, whether due to pollution, drought or population growth, could become a major crisis for any city in the world. [iii] Against this backdrop, Scott Pruitt’s EPA and the Trump Administration work to deregulate clean waer restrictions—acting as though water scarcity is not a present and increasing crisis in the US.

Water covers 70% of the planet yet only 3% is freshwater and two-thirds of that water is frozen in glaciers.[iv] Four billion people presently live in areas of severe water scarcity and the major causes of the shortage are pollution, climate change induced droughts, agriculture usage and population growth.[v] California’s historic six-year drought is the best example of water scarcity in the US resulting from climate change impacting weather patterns and sluggish conservation efforts on the part of individuals and agricultural.[vi] The Flint water crisis remains the most striking example of an entire city’s water being poisoned due to cost-cutting and anti-democratic measures.[vii] The American public’s concern about water pollution is on the rise. In fact, in 2017 a Gallup poll showed that Americans are the most concerned they have been about water pollution since 2011.[viii]

Against this backdrop, President Trump and Pruitt seek to strip the 1972 Clean Water Act—whose very purpose is to prevent significant pollution of the nation’s waters—of its breadth and depth.[ix] In February of 2017, Trump issued an executive order directing the EPA to “reconsider and revise” the Clean Water Rule and in early 2018 Pruitt filed legal documents to begin the suspension of the rule until 2020.[x]

The Clean Water Rule is an Obama era regulation that gave clarity to the bodies of water that are subject to the protection of the Clean Water Act.[xi] The Clean Water Act applies to “navigable waters” which the Act defines as “waters of the United States,” however the exact meaning has continuously been litigated due to the ambiguity of the term.[xii] While navigable streams, rivers and lakes may more clearly fall within the definition, tributaries, wetlands, irrigation ditches, ponds—all possible sources of water that flow into and mingle with larger bodies—present a source of deep legal confusion.

The 2006 case, Rapanos v. US, was an attempt by the Supreme Court to clarify the definition of “waters of the United States” but  served only to deepen the confusion as the Justices failed to arrive at a majority decision and did not provide a proper standard.[xiii] The Clean Water Rule was thus promulgated in 2015 to clarify what tributaries and adjacent waters fall under the jurisdiction of the Clean Water Act and expanded protections to headwaters, streams and 20 million acres of wetlands.[xiv] In addition, it held farmers and real estate developers accountable for runoff pollution from streams running through their property.[xv] The Rule has been subject to ongoing litigation and opposition from business groups, Republican officials and Pruitt himself, in his former capacity as Oklahoma Attorney General.[xvi]

Litigation efforts seeking to strike down the Rule have been unsuccessful. In January, the Supreme Court held unanimously in National Association of Manufacturers v. Department of Defense that challenges to the Rule must be made in district courts rather than directly to circuit courts.[xvii] Although Justice Sotomayor’s opinion did not touch on the merits of the rule itself it clarified the forum and opened the Rule up to even more disparate litigation in district courts and differences in opinion.[xviii] Pruitt seeks to use this ongoing litigation to justify suspending the rule on the grounds that it is too unclear to be enforced.[xix]

Since the Rule has been suspended, however, multiple lawsuits have been filed challenging this action from 11 states plus the District of Columbia and several environmental groups.[xx] The suits challenge Pruitt’s actions on the grounds that it violates the Administrative Procedures Act which holds federal agencies accountable for providing opportunities for meaningful public comments and participation when changing a Rule.[xxi] The plaintiffs argue that there are no statutory grounds for the suspension and the EPA has denied public a meaningful opportunity to comment on such an abrupt and arbitrary change.[xxii]

The clear beneficiaries of suspending the Clean Water Rule are the agricultural and real estate interest groups that prove influential in the Trump administration. The great tragedy of deregulating clean water is that the first to suffer the results will be rural America itself—Trump’s voting base.[xxiii] More than 6 million people living in rural and farming communities have water contamination problems and over 3300 rural water utilities contain harmful level of carcinogens well-above the legal limit.[xxiv] These agricultural runoffs are a major cause for water contamination problems in cities as well.[xxv]

It is easy to feel complacent about water scarcity and perhaps President Trump and Scott Pruitt believe themselves impervious to the fear of having nothing to drink or wondering if their water is safe. However, population growth, record droughts and climate change mean that water scarcity can affect anywhere on the planet.[xxvi] As such, for our own sakes, now is the time to protect the water we have and not to strip it of what few defenses there once were.

*Jasmine Wang is a Junior Editor on MJEAL. She can be reached at yijia@umich.edu


The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.

[i] Megan Barber, Cape Town is running out of water: Are U.S. cities next?, Curbed (Feb. 16, 2018), https://www.curbed.com/2018/2/16/17013532/cape-town-water-crisis-drought.

[ii] Andrew Wong, Cities around the world should prepare for running out of water, experts say, CNBC (April 12, 2018), https://www.cnbc.com/2018/04/11/cape-town-water-crisis-cities-should-prepare-for-water-scarcity.html.

[iii] Id.

[iv] Water Scarcity, World Wildlife Fund, (Mar. 15, 2018) https://www.worldwildlife.org/threats/water-scarcity.

[v] Barton Thompson, Running Out of Water: Cape Town, the U.S., and Drought, Legal Aggregate (Feb. 6, 2018), https://law.stanford.edu/2018/02/06/running-out-of-water-cape-town-the-u-s-and-drought/.

[vi] Suzanne Goldberg, California drought: authorities struggle to impose water conservation measures, The Guardian (March 11, 2014), https://www.theguardian.com/environment/2014/mar/11/california-drought-water-conservation.

[vii] Ryan Felton, How Flint traded safe drinking water for cost-cutting plan that didn’t work, The Guardian (Jan. 23, 2016), https://www.theguardian.com/us-news/2016/jan/23/flint-water-crisis-cost-cutting-switch-water-supply.

[viii] Justin McCarthy, In U.S., Water Pollution Worries Highest Since 2001, Gallup (March 31, 2017), http://news.gallup.com/poll/207536/water-pollution-worries-highest-2001.aspx.

[ix] Kathy Robb, et. al., Trump Executive Order Directs EPA and the Corps to Reconsider the 2015 “Clean Water Rule”, Sive, Paget and Riesel P.C, (March 16, 2017), http://www.sprlaw.com/trump-executive-order-directs-epa-and-the-corps-to-reconsider-the-2015-clean-water-rule/.

[x] Id.

[xi] Coral Davenport, E.P.A. Blocks Obama-Era Clean Water Rule, NY Times, (Jan. 31, 2018), https://www.nytimes.com/2018/01/31/climate/trump-water-wotus.html.

[xii] Larry Jensen, EPA In The Trump Era: Making Sense Of Waters Of The US, Law 360, (February 20, 2018), https://www.law360.com/articles/1009801/epa-in-the-trump-era-making-sense-of-waters-of-the-us.

[xiii] Rapanos v. United States, 547 U.S. 715, 780 (2006).

[xiv] Jenson, supra note 12.

[xv] Jackie Flynn Mogensten, Scott Pruitt suspends Obama-era Clean Water Rule for two years, Grist, (Feb. 1, 2018),  https://grist.org/article/scott-pruitt-suspends-obama-era-clean-water-rule-for-two-years/.

[xvi] Id.

[xvii] Miriam Seifter, Opinion analysis: Challenges to the WOTUS rule must begin in district court, SCOTUS Blog, (Jan. 22, 2018), http://www.scotusblog.com/2018/01/opinion-analysis-challenges-wotus-rule-must-begin-district-court/.

[xviii] Id.

[xix] Timothy Cama, EPA delays Obama water rule, The Hill (Jan. 31, 2018), http://thehill.com/policy/energy-environment/371667-epa-delays-obama-water-rule.

[xx] Kathy Robb, Jurisdiction, pollutants, cost — what to do about water?, The Hill, (March 8, 2018), http://thehill.com/opinion/energy-environment/377479-jurisdiction-pollutants-cost-what-to-do-about-water.

[xxi] Complaint at 5, New York v. Pruitt, No. l:18-cv-1030 (S.D.N.Y. filed Feb. 6, 2018).

[xxii] Id. at 3.

[xxiii] Craig Cox, Trouble in Farm Country: Ag Runoff Fouls Tap Water Across Rural America, Environmental Working Group, (Mar. 15, 2018) https://www.ewg.org/tapwater/trouble-in-farm-country.php.

[xxiv] Id.

[xxv] Tracy Staedter, There’s a Huge Drinking Water Problem Plaguing Rural America, Too, Earther, (Oct. 23, 2017, 10:00 AM) https://earther.com/theres-a-huge-drinking-water-problem-plaguing-rural-ame-1819655918.

[xxvi] Craig Welch, Why Cape Town Is Running Out of Water, and Who’s Next, National Geographic, (March 5, 2018), https://news.nationalgeographic.com/2018/02/cape-town-running-out-of-water-drought-taps-shutoff-other-cities/.

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