The week before he was booted from office, former EPA Administrator Scott Pruitt released a memo directing the EPA’s Office of Water staff to draft a proposal to weaken the Clean Water Act, one of the two bedrock laws that protect our clean water. Now, Andrew Wheeler, the acting administrator of the EPA, has the choice to follow through with this order or to halt this and other attacks on the Clean Water Act. Will he choose to protect the waterways that are sources for our drinking water, habitat for wildlife, and also some of the most beautiful recreation areas? Or will he choose to protect the profits of corporate polluters?
In Pruitt’s memo, he directed the EPA to consider opportunities to shed its own authority under the Clean Water Act, which allows the agency to stop projects that would cause unacceptable damage to water quality, shellfish beds, fishery areas, wildlife, or recreational areas. This important veto power, referred to as EPA’s 404(c) authority, has been used sparingly over the Clean Water Act’s 45-year history; however, it serves as a critical backstop against projects that would cause irreversible damage to our precious waterways.
Right now, there is an ongoing battle over this authority because of the proposed development of a giant copper mine in Alaska’s Bristol Bay. The Pebble Mine would wreak irreversible harm on the waters of Bristol Bay, which contain the world’s largest sockeye salmon fishery and most prolific king salmon run in the world. In addition to the abundance of the fishery, the salmon play an important role in the culture of over 30 Alaskan Native communities and are a key piece of Alaska’s economy and recreation community. Recognizing the threat that Pebble Mine poses to Bristol Bay, the EPA, under President Obama, began the 404(c) process in 2014 to review what steps would be necessary to protect Bristol Bay and all those who depend on it. The Trump administration, however, is reversing course, siding with corporations by indicating that they want to approve construction of the Pebble Mine and mulling the abdication of the EPA’s 404(c) responsibility and authority altogether.
Pruitt believed that weakening or eliminating Section 404(c) would “ensure that EPA exercises its authority under the Clean Water Act in a careful, predictable, and prudent manner.” However, there is no reason to believe that the EPA’s past actions under this authority should be considered anything other than “careful, predictable, and prudent.” Out of the millions of activities that have been permitted since passage of the Clean Water Act in 1972, the EPA has only used this veto power 13 times. Additionally, under the current implementation of section 404(c), the EPA requires a minimum of six months and extensive scientific review before a veto can be finalized. The proposed weakening of this authority severely undermines the EPA’s ability to fulfill its mission of protecting public health and the environment.
Not only is the EPA reviewing its authority to proactively veto a project before construction begins, it is also looking to eliminate its ability to retroactively veto a project after a permit has been issued. These retroactive vetoes have been particularly important in stopping proposed activities in light of new information or changes to a project that show it would cause irreparable damage to waterways. For example, in 1988 the Reagan administration used a retroactive veto to protect 432 acres in the Florida Everglades, which contained threatened and endangered species. Another more recent example occurred in 2011, when the Obama administration’s EPA prevented the Spruce No. 1 surface mine from destroying over 2,278 acres of forest and 6.6 miles of headwater streams.
The importance of the EPA’s veto authority under Section 404(c) of the Clean Water Act cannot be overstated. Weakening these powers undermines the integrity of the Clean Water Act and would prohibit the EPA from protecting our waterways from irreversible damage and destruction. Acting Administrator Wheeler should direct staff to abandon this proposal and instead work to strengthen the policies and programs that protect the waterways our families and communities depend on.