Clean Water Rule, Dirty Water Rule: What’s next for our region’s water?

Bayou City Waterkeeper
September 8, 2021

Last week, Bayou City Waterkeeper submitted written comments to the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers, as the two federal agencies begin efforts to clarify the protections offered by the Clean Water Act. The Clean Water Act, passed in 1972, was intended to “protect and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Among its protections is the requirement that wetlands may not be filled without first going through a federal permitting process that requires environmental review and a plan to offset ecological benefits that will be lost once wetlands are filled.

In our letter, joined by nine non-profit and community partners, we urge the federal agencies to take into account the special nature of our local wetlands and barriers to their protection, as they work to redefine the scope of the Clean Water Act. The letter also offers recommendations designed to promote environmental justice and climate resilience within our region and across the United States.

The fate of wetlands hangs in the balance as the EPA and Army Corps work again to redefine the scope of the Clean Water Act.

Wetlands provide billions of dollars of benefits to our region

Thousands of years ago, our region’s wetlands were formed “by ancient rivers and bayous” and “once occupied almost a third of the landscape around Galveston Bay.” Today, they are found “[a]long the Gulf of Mexico from western Louisiana to south Texas” and serve as “the headwaters for virtually all of the water bodies feeding into Galveston Bay.” They are a “critical part of the aquatic integrity of our regional bayous and bays” and serve a vital role in protecting local communities against floods. The value of wetlands’ stormwater detention services alone has been estimated at a minimum of $600 million for the greater Houston region. When wetlands’ other functions are added to this figure—protecting coastal areas and shorelines by weakening the force of storm surges, filtering pollutants carried by stormwater, replenishing groundwater supplies, reducing erosion, providing habitat and places for people to rest and play—their estimated value leaps to the billions

Our region has rapidly lost wetlands due to insufficient legal protections

Over the last two decades, as storms have become more intense and more disastrous, our region has permanently lost hundreds of thousands of acres of wetlands to rapid commercial and residential development. This could have been avoided with better legal protections for wetlands. For decades, the only legal protections for wetlands in Texas have existed at the federal level, through the Clean Water Act. But in our region in particular, the U.S. Army Corps of Engineers, the federal agency with oversight of wetlands, has historically failed to enforce these protections outside of the 100-year floodplain. As a result, within our region, more than 80% of wetlands that have been lost regionally to development in the past 25 years were outside the 100-year floodplain. Without any change in the Corps’ oversight within our region, we should expect to lose at least 100,000 more acres of wetlands to development in the next four decades–with grave consequences for local water quality, flood resilience, and environmental justice. Although flooding affects communities across our region, it compounds historic inequities and hits socially vulnerable communities hardest.

The quality of our local bayous and coastal bays depends on wetlands, which filter pollutants carried by stormwater as it traverses our highly developed watershed.

A glimmer of progress under the Obama administration, setbacks under the Trump administration

Working on the backdrop of decades of Supreme Court precedent, the Obama administration aimed to create a definition of “waters of the United States” that would make water and wetland protections across the United States more consistent and rooted in the latest available science. The final definition, known as the Clean Water Rule, created specific protections for Texas coastal prairie wetlands and specifically acknowledged their relationship to our local bayous and bays. As the State of Texas led a coalition joined by industry groups to challenge the rule, we urged a local federal judge to uphold important protections for Texas coastal wetlands and floodprone communities.

Within days of taking office, President Trump ordered the EPA and Corps to undo the Clean Water Rule, as part of a broader effort to dismantle environmental protections across the country. The resulting Navigable Water Protection Rule, finalized in 2020 and dubbed the Dirty Water Rule by environmental advocates, stripped our region’s wetlands of almost any protection, with worrisome consequences for local efforts to improve flood resilience.

Late last month, as federal agencies began the process of repealing that rule, a federal judge in Arizona ruled that the Trump-era regulation contains serious legal errors and will cause serious harm to our nation’s waters if left in place. On September 3, the EPA announced that the EPA and Corps have halted the implementation of the Navigable Waters Protection Rule and will be applying the pre-2015 WOTUS definition until a new rule is finalized. 

New hope for local wetlands, as well as environmental justice and climate resilience, under the Biden administration

As part of their broader work to restore and strengthen federal environmental protections, the EPA and Corps are beginning the process of crafting a new “waters of the United States” rule. They solicited the feedback of stakeholders like Bayou City Waterkeeper to provide comments on several categories, ranging from updates to scientific research to the best way to engage communities most affected by flooding and water pollution, environmental justice, and climate change. The federal agencies will review these recommendations and proceed in two phases: first repealing the Trump-era Dirty Water Rule (though EPA’s September 3 announcement potentially renders this step unnecessary), then replacing it with a new definition for “waters of the United States” rooted in science. Both phases will be accompanied by further opportunities for public comment. 

In a 28-page letter submitted last Friday, Bayou City Waterkeeper outlined recommendations for the federal agencies focused on the specific impacts of Clean Water Act deregulation on the greater Houston region. Our recommendations include: 

  • Centering science and emphasizing the hydrological, chemical, biological, and ecological connectivity of wetlands to our local bayous and bays.
  • Soliciting and engaging with communities with environmental justice concerns, and protecting our most vulnerable communities by investing in better tools and methodologies to improve water quality and protect our coastal wetlands.
  • Defining the Clean Water Act’s scope and regulating regional development through the lens of climate change and the latest data on projected rainfall, floodplains, and climate disasters.
  • Repealing the Navigable Waters Protection Rule immediately.

Local and regional organizations signing on to our letter include Bayou Land Conservancy, Bayou Preservation Association, Coalition of Community Organizations, the Coalition for Environment, Equity, and Resilience, Galveston Bay Foundation, Healthy Gulf, Katy Prairie Conservancy, Sierra Club’s Lone Star Chapter, and Turtle Island Restoration Network. Bayou City Waterkeeper intends to submit more detailed comments as the agencies release draft language for the new rule and will provide further updates as the federal government opens more opportunities for public comment.

Using science and law, Bayou City Waterkeeper works with communities affected by flooding and water pollution toward a clean and healthy watershed. Through the Clean Water Act, Bayou City Waterkeeper holds polluters accountable and protects the waters that flow through our bayous, creeks, and neighborhoods into our coastal bays.