Trump’s new water rule: What it means for mines and pollution

There is most certainly gold under Ned Blackmon’s feet. 

For months now, a rumbling carousel of rock trucks and backhoes expands the already expansive open pit mine at the 4,600-acre Haile Gold Mine here in Kershaw. The hunt for tiny specks of gold hidden deep in the Southern slate has sparked a gold rush among prospectors eyeing surrounding land – including Mr. Blackmon’s farm.

The rush to revive one of America’s oldest gold mines was only bolstered last week when the Trump administration replaced the Obama-era Waters of the United States rule with the Navigable Waters Protection rule. The revision reduces federal oversight over the ephemeral headwaters that feed into larger rivers and lakes, and ultimately Americans’ drinking water.

The Environmental Protection Agency once opposed OceanaGold's plans to expand the Haile Mine out of fear it would pollute over 1,000 acres of wetlands. Now federal regulators may not have oversight over much of it.

Mr. Blackmon, a local farmer who has been approached about selling his land to the mine, sees the stakes plain as dirt.

He removes a weathered newspaper from his truck visor. Dated 2014, the front page article in The State describes a legacy of pollution that even small mines leave behind – and the massive tab left to taxpayers by companies that promised environmental restoration.

“There is no doubt that this mine is going to affect our groundwater,” says Mr. Blackmon. “But that money, it talks.”

The rule change formalized last Thursday is part of a broader dismantling of federal environmental oversight by the Trump administration. Writ broadly, the shift underway is an experiment in environmental federalism that pushes regulation closer to the people – but also leaves it more vulnerable to powerful corporate lobbyists.

“Environmental federalism gets cloaked in the language and rhetoric of constitutional law, but it’s really a simpler, more pragmatic concept: Who is responsible for cleaning up a toxic waste landfill that’s reached into a nearby river?” says law professor Cale Jaffe, director of the Environmental and Regulatory Law Clinic at the University of Virginia in Charlottesville. “Is it the local government that allowed the landfill through zoning? Is it the state, which issued the permit? Or is it the federal government, which established the hazardous waste standards?”

OceanaGold’s country director, David Thomas, says the main effect of the rule change will be more clarity around permitting. But he says that the mine will remain under “profound regulations” that fit into an evolving business model that mandates environmental stewardship and transparency as core corporate values. In the last two decades especially, he says, “the industry has seen a significant shift in terms of that attitude.”

For OceanaGold, he says, that means zero discharge operations from its processing plant, preservation of miles of pristine streams, and a $65 million restoration fund for when the mine closes in an estimated 15 years.

“Every industry has bad actors, so it is incumbent on us to stick decisively to our values, particularly when it comes to environmental and operational integrity,” says Mr. Thomas. “If we don’t, it will have an adverse impact on what we do.”

Federal oversight, in essence, provides a floor for water and air quality, allowing states and local communities to exceed those standards if they wish.

At the same time, “in a lot of states you have industry pushing to limit state authority to only what is provided at the federal level, which makes [taking away federal oversight] a bait and switch,” says Kelly Hunter Foster, a senior attorney at the nonprofit Waterkeeper Alliance.

“The federalism balance is important, where there is a strong federal stance, support for states, and then an engaged citizenry pushing back on the other side against industry ... to minimize impacts to people downstream,” says Ms. Hunter Foster. “That’s really the original common law of how you’re supposed to do things: You can use your land to the extent that it doesn’t harm others.”

A new gold rush

Many of the miners who flocked to California during the gold rush first dipped their pans in Carolina waters like Lynches River, the genesis of the Haile Mine. But modern-day pit mining also unearths toxic wastes, including cyanide, arsenic, and sulfuric acid.

President Donald Trump has stated that “crystal clear” waters are a goal of his administration. But earlier this month he chided the Obama-era rule as one “that basically took your property away from you.” (The rule required landowners to seek permits for changes that would affect seasonal, standing, and unconnected waters, as well as some headwater streams and wetlands.)

Key beneficiaries are golf course developers like Mr. Trump, farmers like Mr. Blackmon, and extractors – like the OceanaGold outfit here in Kershaw.

“If it’s not farmed, it’s mined,” says Chris Smith, executive director of the Mining Association of South Carolina, in Chapin. “And anytime that something to do with the waters of our state is granted more leniency so we can do our job, that is very beneficial to us.”

The U.S. has as many as half a million abandoned mine sites, of which at least 33,000 have degraded the environment around them, according to the U.S. Government Accountability Office. South Carolina has two smaller mines that are now part of federal Superfund cleanups after waste contaminated surrounding wetlands.

Obama administration officials said the rule was intended to clarify legal confusion sown in part by two separate U.S. Supreme Court decisions on whether the federal government could regulate smaller and more seasonal bodies of water on private land.

The Trump administration peeled back that rule against the advice of its own scientific advisory board, laying the groundwork for lawsuits by states and environmental groups.

“This modernization is a retreat,” says Pat Parenteau, an environmental law professor at Vermont Law School in South Royalton. “Their best argument is, let the states take care of this.”

There is one overarching problem with the federalist approach to water regulation, he says. Flowing waters pay no heed to political boundaries. And depending on geography and political leanings, states have wildly different priorities when it comes to environmental protection.

“States are not stepping up to fill the gaps on nonpoint pollution,” which includes agricultural and mining interests, adds Professor Parenteau. “That’s why we have more and more dead zones all over the place and stinky, filthy, algae-choked waters, simply because the Clean Water Act is not strong enough now. The response [from the Trump administration] is to weaken it further.”

Tricky calculus

Federal oversight of U.S. waters began with the 1972 Clean Water Act, enacted after industrial pollution had caused rivers and lakes to catch fire for nearly a century before a Cuyahoga River fire in 1969 galvanized the environmental movement.

Today, Gallup regularly finds that having swimmable and fishable water near one’s home ranks as Americans’ top environmental concern. Plumbing some 50 million water quality measurements from 240,000 monitoring sites, a recent study found that the probability that U.S. surface waters are unsafe for fishing fell by about 13 percentage points, from a 28% chance to 15% chance, between 1972 and 2014. But looked at another way, about half of U.S. rivers and lakes are violating one or more federal water quality standards.

”Right now, we don’t know how much is being regulated or deregulated, and we also don’t know much about the consequences of the new rule,” says resource economist Joseph Shapiro, who studies the impacts of water pollution at the University of California, Berkeley. “But where you get your water matters.”

But those complexities and uncertainties around how watersheds work can get glossed over when measured against the immediate economic impact: By one estimate, the Haile Mine generates some $87 million a year in Lancaster County alone, employing over 600 locals.

For miners like Steven Dabbs, the new regulations are likely a huge boon. The mine has brought a raft of high-paying jobs to Lancaster County, not far from Charlotte, North Carolina.

“The pace is ferocious, but the pay is good,” he says – as much as $19 per hour for a rookie miner, he estimates.

But it’s not just a struggling old textile town like Kershaw welcoming the economic boost from looser regulations on water quality.

The Trump administration has also been giving extensions to liberal-leaning cities that entered consent decrees to fix up inadequate sewage treatment plants. That effort is being led by social justice activists who complain that the federally ordered cleanups are pushing up water bills, disproportionately affecting poor people.

The difficulties of measuring the benefits versus the costs of clean water remain at the core of how the U.S. safeguards its most precious resource in a deregulatory era.

“Until the 1970s, the Potomac River had long struggled with unregulated discharges of pollution that were creating this stench rolling by the Jefferson Memorial and the Lincoln Memorial,” says Professor Jaffe at the University of Virginia. “We didn’t get out of that problem by voluntary measures. That was a pretty progressive federal response to a real crisis. There’s now a risk of forgetting how we got out of that mess.”