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Regulatory Rollbacks: Loss of federal water protections impacts Great Lakes region

Regulatory Rollbacks: Loss of federal water protections impacts Great Lakes region
June 22, 2020 Emily Simroth

The Trump administration has made a habit of rolling back federal environmental protections over the past few years.

According to The New York Times, 100 environmental rules have been reversed since President Donald Trump took office. Among those rules are thirteen changes or proposed changes that directly impact the Great Lakes, other regional waterways and drinking water.

This region is dependent on the Great Lakes for drinking water and its economy, and since the waters of the region are so interconnected, limiting protections for any of them affects the whole system, warns Karen Hobbs, senior policy analyst at the National Resources Defense Council.

“NRDC’s focus has been on protecting these environmental laws – the National Environmental Policy Act, the Clean Water Act, the Clean Air Act,” Hobbs said. “We fought for the Obama administration to clarify which bodies of water are protected, and we’re fighting against the Trump administration to make sure they don’t succeed in narrowing those protections.”

For NRDC, fighting back involves publishing scientific analyses of these rule changes, engaging with community partners on the front lines and in local governments, and taking these issues to court when necessary.

On top of the regulatory rollbacks, Hobbs expressed concern at the decrease in environmental oversight in the Great Lakes area, pointing out that U.S. EPA Region 5, which covers Illinois, Indiana, Michigan, Minnesota, Ohio, and Wisconsin, has seen a 60 percent reduction in inspections since Trump took office, compared to about a 30 percent reduction throughout the country.

The EPA was “delivering on President Trump’s commitment to return the agency to its core mission: Providing cleaner air, water and land to the American people,” a spokeswoman for the EPA said in a statement to The New York Times.

The EPA did not respond to Great Lakes Now’s questions.

Below we have given an overview of thirteen rollbacks of water-related protections that affect the Great Lakes area.

  1. Removed interagency council focused on environmental protection of Great Lakes and oceans.

In response to the Deepwater Horizon oil spill in 2010, President Barack Obama signed an executive order establishing the National Ocean Council, a collaborative body tasked with ensuring the actions of government agencies and departments were guided by principles of stewardship towards the oceans and Great Lakes.

Trump revoked the executive order in June 2018 and replaced the National Ocean Council with a smaller Ocean Policy Committee focused on protecting the economic and security value of oceans and the Great Lakes.

  1. Removed flood management standard for infrastructure.

Trump revoked an Obama-era executive order that recognized that impacts of flooding are expected to increase as a result of climate change and required the government to account for sea level rise and flood risks when developing infrastructure projects.

Increasingly heavy rainfall as a result of climate change contributed to the recent floods in Midland, Michigan. Intense storms and high water levels are only projected to increase throughout the coming decades, so the removal of climate change and flooding considerations for infrastructure projects could have long-term effects on the Great Lakes region.

  1. Excluded water and air contamination from chemical safety assessments.

The 2016 Frank R. Lautenberg Chemical Safety for the 21st Century Act amended the Toxic Substances Control Act to require risk-based assessments of many existing chemicals. When reviewing these chemicals, the Trump administration’s EPA decided to only assess the damage from direct contact and not consider negative effects from the chemical’s presence in the water and air when determining if their use should be restricted.

However, this EPA policy change was overturned in federal court in November 2019. The Ninth Circuit Court of Appeals ruled that the EPA cannot, by its own rules, decide to evaluate only certain uses of a chemical. Specifically, it cannot exclude “legacy uses” — i.e. material used previously to line pipes that is now leaching into drinking water.

Sarah Tallman, a senior litigation attorney with the Natural Resources Defense Council, who argued the case in the 9th Circuit Court, stated, “This means under the agency’s rules, the Trump EPA—an agency whose policy favors chemical manufacturers like Dow and Dupont—can’t intentionally blindfold itself.  It can’t pick and choose between uses of chemicals it wants to consider and uses it doesn’t.”

  1. Cut back protections for small waterways and wetlands.

In September 2019, the Trump administration announced the repeal of the 2015 Clean Water Rule, which had broadened the definition of “waters of the United States” in the Clean Water Act to protect streams and wetlands. The reversal narrows this definition, allowing polluters to discharge into these waters without a permit.

Howard A. Learner, executive director of the Environmental Law & Policy Center, warned that the rule change threatens the waters of the Midwest.

“Water resources are so interconnected,” he said in a statement after the publication of the final rule replacement in April 2020. “To protect the Midwest’s great waterways – including the Mississippi River and the Great Lakes – we must safeguard the backyard brooks, community creeks and tributary streams that feed them. We need strong federal protection for all of the wetlands that store and filter water before it reaches our lakes, rivers, and streams.”

Karen Hobbs at the National Resources Defense Council also criticized the Trump administration’s “Dirty Water Rule” and emphasized the importance of protecting the region’s remaining wetlands, which filter out pollutants and protect communities by absorbing floodwaters.

  1. Allowed certain power plants to release toxic substances into public waterways.

An Obama-era rule required power plants to use up-to-date technology to remove metal pollutants like lead, arsenic and mercury from wastewater beginning in 2018. In April 2017 the then-head of the EPA, Scott Pruitt, decided to postpone the deadline for compliance and reconsider the rule, stating that “the requirements set by the Obama administration are not economically or technologically feasible within the prescribed time frame.”

  1. Allowed EPA to more easily reject state objections to projects that fail to meet water quality standards.

States have previously denied permits for federal projects like pipelines and coal export terminals under section 401 of the Clean Water Act, which allowed state and tribal authorities to assess projects to see if they harmed drinking water quality.

The Trump administration’s new policy narrows the timeline for states to review proposals to one year and restricts the scope to direct impact on local water quality, so they can’t factor in other considerations like climate change. The change was proposed in August 2018 and completed in early June 2020.

In April 2019, Michigan Gov. Gretchen Whitmer, joined by the governors of Illinois, Minnesota, Pennsylvania and Wisconsin, wrote a letter opposing the change, arguing “State authority to certify, revoke, or revise federal permits of discharges into waters of the United States per Section 401 is crucial to the Clean Water Act’s framework of cooperative federalism. This authority allows states to maintain state water quality with respect to activities associated with federally permitted discharges.”

  1. Withdrew regulations for fracking on federal and Native American lands.

The current administration finalized the repeal of a rule regulating fracking on public and tribal lands in December 2017. The original rule established stricter standards for fracking on public land and worked to compel companies to disclose the fracking chemicals they use, which can contaminate groundwater. The state of California and environmental groups sued the Bureau of Land Management over this rule change, but the Northern District of California upheld the repeal in March 2020.

According to the Bureau of Land Management, Michigan and Ohio have the most acres of federal land with oil and gas leases of the Great Lakes states, with over 110,000 acres and just under 45,000 acres, respectively, as of fiscal year 2018.


Read more news on Great Lakes Now:

Regulation During COVID-19: Canadian, U.S. agencies lighten monitoring priorities

Conflicted Over Copper: Technological advances clash with environmental concerns in Twin Metals case

Pollution, Permits: Enbridge, Michigan grapple with Line 5 tunnel project


  1. Slowed removal of lead infrastructure that contaminates drinking water.

Trump’s EPA proposed revisions to the federal Lead and Copper Rule in October, a regulation that manages lead and copper contamination in drinking water. While the changes would mandate testing for lead in schools and daycare centers and require inventories of lead service lines, they slow down the replacement of the lead service lines that are a major source of the toxic chemical leaching into drinking water. Previously, a water system with elevated lead levels had to replace 7 percent of its service lines each year, but under the new rule they only have to replace 3 percent.

Dimple Chaudhary, senior attorney with the National Resources Defense Council and lead counsel in the Flint drinking water case called the move “wrongheaded,” stating, “A water utility does not need 33 years to replace its lead service lines. It will have taken Flint only three years to get its toxic lead pipes out of the ground. The rule suggests the EPA has learned little from the disaster in Flint.”

The National Resources Defense Council believes the change is illegal because it “violates the anti-backsliding provision in the Safe Drinking Water Act, which prohibits EPA from weakening any drinking water standards that are on the books.”

  1. Revoked a rule stopping coal companies from discarding debris in streams.

The Senate first voted to repeal the Stream Protection Rule, which restricted the dumping of debris from surface mining, in February 2017, a few weeks after it went into effect. The rule mandated monitoring of mining operations to ensure they were not damaging groundwater and surface water, and it required protection and restoration of land disturbed by mining.

  1. Proposed weakening regulations of the disposal and storage of coal ash waste.

Coal ash, a byproduct of coal mining containing toxic chemicals like arsenic, lead and mercury, was not federally regulated until 2015. The Obama-era rule classified it as nonhazardous waste and required its waste facilities to have no probable negative impacts on health or the environment and mandated that leaking waste deposits begin closing.

In 2018, the Trump administration amended the rule, but the D.C. Circuit ruled shortly after on a challenge to the 2015 rule and found that the original regulation was not sufficiently protective. In a court decision on the new Trump-era amendments in March 2019, the D.C. Circuit “tasked a notoriously deregulatory administration with drafting a coal ash rule stronger than the one promulgated by the Obama EPA,” according to legal analysis by the Environmental & Energy Law Program at Harvard University. The analysis states that it remains to be seen if the new rule proposed in December 2019 has followed this court order.

  1. Proposed expanding the lifespan of unlined coal ash holding areas, which are a spill risk.

Coal ash is stored in wet or dry disposal systems, which are unlined, clay-lined or composite-lined. A 2015 rule required all unlined coal ash ponds, which have no barrier to prevent leakage into groundwater, to begin closing in 2018 and be closed by 2023. The Trump administration’s rollback would give some companies up to five more years to close down these disposal areas and allow others to demonstrate that their unlined impoundments are as safe as lined ones and continue using them.

  1. Proposed limiting a requirement for companies to prove that recycled coal ash deposits will not cause environmental damage.

The 2015 coal ash regulations also required companies to verify that deposits of recycled ash that weighed 12,400 tons or more wouldn’t hurt the environment. Under a proposed change released by the EPA in July 2019, they would only have to prove the deposits were safe if they were in a floodplain, seismic zone or other “sensitive location.”

  1. Proposed rules that cut down on federal projects requiring environmental review.

In January 2020, the Trump administration proposed restrictions to the National Environmental Policy Act. NEPA requires major federal projects that will have a significant environmental impact, like pipelines, bridges or power plants, to undergo an environmental review process. The new changes limit the types of projects that require review and impose strict deadlines for the process.

“NEPA is one of the nation’s bedrock environmental laws. It forced federal agencies to consider alternatives to plans and give communities a voice in how those projects are implemented,” NRDC’s Hobbs explained.

A federal agency proposing to build a new highway, for example, was required to bring in public comment and public concerns and needed to consider alternative options, such as improving local roads or upgrading public transit. The original review process also had to look at the cumulative impacts of projects and consider climate impacts on a particular region, a requirement the Trump administration has removed.

“The proposed rule would limit the types of alternatives an agency would consider and not require it to respond individually to individual comments,” Hobbs said. “This is a much broader rollback that could impact the Great Lakes in lots of different ways.”


Read more news on Great Lakes Now:

Clean Water Rule: Ohio U.S. Rep. challenges Trump on rollback while key Great Lakes legislators stay silent

Conflicted Congressman: Mich. Rep. Huizenga backs federal money for Great Lakes, supports Trump’s Clean Water Rule rollback

New Standards on Lead and Copper: EGLE educates public on lead regulations while water suppliers fight new rule


Featured image: Lake Erie (Great Lakes Now Episode 1013)

2 Comments

  1. Kellison King 5 months ago

    How can I share this article by forwarding to another email address?

  2. Harold WATKINS 4 months ago

    Too much smoke n mirrors. Speculation and assumptions to be taken seriously…site specific examples where reduced EPA regs have affected the GL’s. Hal

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