By Becky Hammer, Natural Resources Defense Council
The president’s infrastructure plan asks us to choose between new infrastructure and a healthy environment. That is a false choice, as 94% of Americans already know.
Despite Trump’s frequent scapegoating rhetoric, environmental reviews and permits are not the main reason for infrastructure project delays. The real reason is typically a lack of funding.
Yet not only does the president’s infrastructure plan fail to provide a meaningful investment in water infrastructure—as discussed in the second part of this three-part blog series—it also proposes to weaken our nation’s environmental laws in order to fast-track projects. These wrong-headed changes would make it harder to prevent irreversible damage to our communities’ beloved waterways and our sources of drinking water.
My colleagues have already written about the importance of National Environmental Policy Act (NEPA) project reviews, which the plan attempts to gut. This post will focus on the plan’s proposals to roll back Clean Water Act requirements designed to protect water quality and safety.
The plan’s clean water rollbacks are unnecessary and dangerous
Before diving into the details of the specific proposals, we should be clear on one overarching point: this plan would increase water pollution. That’s because it would undercut our ability to make sure that infrastructure projects don’t contaminate or destroy our waterways—including the water we drink.
We should also emphasize that the president offers no factual support for the claim that existing clean water protections hinder infrastructure development. There’s just no evidence that any of these dangerous changes are necessary.
The plan’s clean water rollbacks fall into four main categories. First, the plan would make it less clear which waterways should be protected from harm. Second, it would dramatically slash opportunities to review proposed projects’ impacts on water sources. Third, it would make it harder to stop projects that are known to be harmful. And fourth, it would reduce oversight of facilities that discharge water pollution.
The plan would create confusion about which waterways are protected
Some Clean Water Act programs are administered by the Environmental Protection Agency (EPA), while others are run by the Army Corps of Engineers. However, the law gives EPA the sole authority to determine which water bodies are covered by the law’s protections. Congress set things up this way because clarity and consistency are important, and we don’t want situations where a river or wetland is protected under some programs but not others.
Trump’s infrastructure plan would undo this carefully thought-out arrangement. It would take away EPA’s authority to decide which waters are protected from the dredging and dumping of material, and give that authority to the Army Corps of Engineers.
This proposal would create inconsistency and confusion, as EPA would still determine which waters are covered by other programs. Moreover, EPA has more expertise and experience making these important decisions, while the Army Corps is more likely to exclude waterways from protection.
For example, in 2008 the Army Corps received a request to figure out how much of the Los Angeles River should be protected by the Clean Water Act. The Corps decided that only 3.75 miles of the river—out of its 51-mile length—should be covered by the law’s safeguards. EPA had to step in and overrule that decision, finding that the entire river should be protected by the Act.
If the Army Corps decision had been allowed to stand, 93% of the LA River would have been more vulnerable to unregulated pollution. Yet Trump’s infrastructure plan would have the Corps make most of these decisions moving forward. That’s a bad idea.
The plan would slash review of projects’ impacts on waterways
Infrastructure projects can have big consequences for our water. Roads and other developments create polluted runoff and destroy precious wetlands. Dams divert water from fragile ecosystems. Pipelines create the risk of dangerous oil and gas spills into rivers and streams.
That’s why our laws provide for careful review of proposed projects under the Clean Water Act. We want to make sure projects are carefully sited and designed so they don’t cause damage to our waterways—or not built at all if the risks of harm are too great.
Trump’s infrastructure plan proposes several changes that would dramatically reduce the scrutiny we give to proposed projects, making it harder to know whether our sources of drinking water could be put at risk.
The plan would eliminate independent review of federal infrastructure projects’ impacts on wetlands. It would shorten the environmental review process for projects that affect existing Army Corps infrastructure like dams, levees, seawalls, and piers. And it would allow non-federal infrastructure projects carried out in waterways to be approved based on a review of preliminary, incomplete project designs.
There’s one particularly troubling proposed change in this category. It would undermine one of states’ most powerful tools to protect water quality within their borders.
The Clean Water Act empowers states to review any proposed project that requires a federal permit for compliance with the state’s water quality requirements. Under current law, a state has up to one year to review a proposed project and issue (or deny) a water quality certification.
Trump’s infrastructure plan would limit the timeframe for this process. The proposal doesn’t say exactly how much time states would have for their reviews, but earlier unofficial proposals from the administration suggested a limit of three months.
States need time to thoroughly review whether proposed projects comply with state law. The water quality certification process isn’t a rubber stamp. It’s a highly technical examination that requires detailed expertise in the project, the science, and the law. A full year is often required to take a careful look at these large and very complicated projects.
One recent example shows the absurdity of this proposal. The Constitution pipeline, which was denied certification by New York State in 2016, was a proposed 124-mile-long fracked gas pipeline that would have crossed 250 creeks and streams—85 of which serve as important trout streams and spawning areas. In assessing the project application, the state examined every single creek and stream crossing to determine whether or not the project would threaten water quality. This kind of assessment simply can’t be completed in an abbreviated timeframe.
The plan would make it harder to stop truly terrible projects
Not only would the plan cut back on environmental reviews and reduce the information we have about proposed projects, it would also go a step further and make it harder to stop projects that we know are going to have devastating impacts.
Under current law, the Clean Water Act allows EPA to veto an Army Corps decision to grant a dredge-and-fill permit for extremely destructive infrastructure projects. EPA exercises this veto sparingly. The Army Corps authorizes 68,000 permit activities every year. By comparison, EPA has used its veto authority only 13 times in 45 years, reserving it for the worst of the worst actions.
For example, in 2011 EPA used its veto authority to stop the vast and irreversible ecological damage associated with the proposed Spruce No. 1 mountaintop surface mine in West Virginia. The mine was one of the largest mountaintop removal operations ever proposed in Appalachia. It would have buried over 7 miles of headwater streams, disturbed 2,278 acres of forest, and degraded water quality in streams adjacent to the mine.
Trump’s plan would eliminate this critical environmental backstop by taking away EPA’s authority to veto a permit. Projects with exceptionally harmful impacts could be approved more easily, including things that have previously been subject to the veto such as trash dumps, dams, and large developments in sensitive areas.
The plan would reduce oversight of polluters
Last but not least, the president’s infrastructure plan proposes to weaken a core Clean Water Act pollution control program.
Facilities that discharge pollution into America’s waterways have to obtain permits. These permits place limits on the amount of pollution that can be dumped into the water and require the facility to use the most effective technology that’s currently available.
The duration of a Clean Water Act discharge permit is five years. That means every five years, a polluter must apply for a new permit that contains updated requirements and pollution limits. This five-year permit term helps to protect the environment and public health by ensuring that discharge limits are regularly strengthened.
President Trump’s plan proposes to extend that permit duration from five to fifteen years. This change would allow dischargers to operate for at least a decade and a half under pollution control standards that, in many instances, have long since become outdated.
For example, last summer environmental groups sued the state of Pennsylvania for allowing coal-fired power plants to operate under discharge permits that had not been renewed in up to 17 years. As a result, the permits had not been updated to reflect technological improvements that occurred over that timeframe, and they lacked up-to-date requirements to reduce discharges of toxic pollutants like mercury, lead, and selenium. This example shows how too-long permit terms can put public health at risk.
This proposed change would also shut the public out of the permitting process for very long stretches of time. And it would limit EPA’s opportunities to exercise oversight of state permit programs to make sure they’re working effectively.
With these clean water rollbacks, the plan is unacceptable
Our communities need better infrastructure, but we don’t have to accept increased water pollution in exchange. And make no mistake: this plan would threaten clean water across the country.
President Trump thinks of himself as an expert dealmaker. Well, these rollbacks are a dealbreaker—and overall, this plan is a bad deal for clean water in America.