Where There’s Smoke, There’s Fire, or All Smoke and Mirrors?
With much fanfare, the Republican staff of the Senate Environment and Public Works Committee last week trumpeted its release of a “report” purporting to show that the Environmental Protection Agency and U.S. Army Corps of Engineers overzealously enforce the Clean Water Act. The agencies do so, the Committee would have you believe, by applying pollution protections under the law to water features that the report argues should not be covered. The Committee report also suggests that the agencies’ implementation of the law represents inappropriate early enforcement of the Clean Water Rule, which the agencies adopted last summer.
If you’re interested in learning more about the need for the Clean Water Rule, the history of its development, and what it does, I wrote an overview blog post when it was adopted, and EPA has an informative website devoted to the Rule
When the Committee’s new attack piece came out, someone described it to me as a “dog bites man” story, in that it was unsurprising that long-time opponents of Clean Water Act protections for important water bodies put out a report that took issue with rigorous implementation of that law. I submit that it’s such a non-story that it’s more of a “dog wags tail” scenario, because Republicans in Congress seem to attack the Clean Water Act almost constantly, and because the report relies on the self-serving characterizations of examples of the implementation of the law cherry-picked and given to the Committee by industry lobby groups and other opponents of the Act’s protections.
Even though this attack came as no surprise to those of us who have worked for many years defending the Clean Water Act against similar assaults, I took a closer look at the Committee’s report. Below, with apologies for the length of the discussion, is my analysis. I’m happy to say that the report utterly fails to document either a pattern of federal agencies enforcing the Clean Water Act too strictly today or evidence that the Clean Water Rule would protect too many water bodies from pollution or destruction.
What’s not in the Committee report?
With respect to the Clean Water Rule, the report takes a big swing but misses badly.
- None of the 15 or so “case studies” of alleged agency overreach involves the application of the new rule. None. That’s because they largely involve activities that preceded the rule, in some cases substantially. One example involves a property that the company claims it has been trying to develop for over a quarter-century. It is hard to imagine a “case study” less relevant to the new Clean Water Rule than one that derives from years and years of implementation of the existing rules by multiple federal administrations.
- The agencies presently cannot legally implement the Rule, as it is temporarily on hold while litigation (largely brought by opponents of clean water protections, including organizations the Committee relied on in developing this report) plays out.
- Many of the report’s examples involve implementation of provisions of the Clean Water Act or agency regulations that the Clean Water Rule won’t change even when it takes effect.
These facts expose the Committee report for what it really is: a megaphone amplifying polluters’ decades-old objections to the Clean Water Act. And it provides no reason to doubt the importance of the Clean Water Rule. In fact, the Clean Water Rule—far more than the existing requirements on which the report is based—specifies what kinds of features are covered by the law and what kinds are exempt, as well as the factual information that will be considered in assessing that question. In that respect, the Rule would result in more predictable determinations than previous rules and policies.
What’s in the Committee report?
But, one might ask, aren’t the Committee report’s “case studies” of agency implementation pretty damning and don’t tales of regulated puddles and dry land point to a federal government out of control? If that were what the report actually showed, I’d agree. But a close look at the alleged examples of overreach reveals that neither EPA nor the Army Corps is remotely too protective of the nation’s waterways.
Before getting into the specific allegations, consider a few general points.
- First, just because a property has a water body that the Clean Water Act protects does not mean that the property cannot be developed. For one, the agencies cannot require Clean Water Act permits for any activity if it does not discharge a pollutant into a protected water, so if a property owner avoids such a discharge, s/he will not need a Clean Water Act permit. Moreover, even if the law requires a permit, they are routinely granted; for instance, the Corps authorized about 57,000 permits in fiscal year 2015, the vast majority of which were based on fast-track permits for discharging activities that the Corps believes are minimally harmful.
- Second, a smattering of oddball results hardly equals an agency policy. The Army Corps and EPA will certainly make errors from time to time in applying the rules to specific factual situations—both in landowners’ favor, and in ways to which they object—but that is unsurprising given the sheer volume of work that the agencies must perform. For instance, in fiscal year 2015, the Corps performed roughly 49,000 jurisdictional determinations—assessments of whether given properties contain water bodies covered by the Clean Water Act. Fortunately for them, land owners have multiple opportunities to challenge agency determinations they dispute, including in court.
- Third, in my experience, which the statistics bear out, there’s good reason to think that the Corps errs more frequently on the side of authorizing discharges than seeking to prevent them, since it denies a minuscule fraction of all requests for permits nationwide.
Turning finally to the “case studies” in the Committee’s report, I found little reason to conclude the agencies are too rigorous in implementing the law. The examples include several instances of routine law enforcement. Other cases lack enough detail to assess what the agency position actually was, largely because many “case studies” were provided by the American Farm Bureau Federation (a long-time Clean Water Act opponent) and include material provided by a consultant for project developers, but little to no information from the agencies themselves.
- The report’s first “case study” supposedly entails “ordinary plowing” that allegedly should have been treated as an exempt discharge under a statutory permitting exclusion for “normal farming.” In truth, however, a federal court found that the exclusion didn’t apply because relevant rules provide that where hydrological alterations are necessary to bring long-idle fields into production, it is not “normal farming,” and in this case there was “nearly twenty-four years of no activity that meets the applicable definition of farming….” In other words, this example is nothing more than a straightforward application of the existing rules (which, again, the Clean Water Rule would not impact).
- In the same vein, the report claims that a Wyoming livestock producer’s stock pond construction was inappropriately treated as a regulated discharge. But, when you examine the case even just a little, it becomes quickly apparent that there’s much more to the story, and the discharge in question appropriately should have been covered by the Act. According to EPA, to build the pond, the landowner filled in 40 feet of a stream called Six Mile Creek with “sand, gravel, clay, and concrete blocks” to create a dam, and did so without getting any kind of Clean Water Act permit for the discharge. The dam resulted in the “inundation of an approximately 745-foot reach” of the creek. That is the kind of activity that Congress specifically demanded be subject to environmental permitting; doing so helps guard against the complete damming of streams for personal use with untold consequences for upstream and downstream users of the same stream. EPA and the landowner settled this case in 2016, and the landowner agreed to undertake mitigation activity.
- The report takes issue with another routine aspect of Clean Water Act implementation—using information other than site visits, such as aerial photography, to determine whether geographic features are covered waters. The Corps (remember that it’s doing tens of thousands of these assessments a year) does this all the time, and has long done so. For instance, in a 2005 report, the Government Accountability Office found that only 54% of the case files it reviewed included a site visit. To be clear, I have no beef with site visits—the more information the agencies have about a site, the better, as far as I’m concerned. But resources are hard to come by, and using aerial photography and other scientific evidence reasonably relies on available information (without, it bears noting, stepping foot on someone's property) while also affording land owners multiple opportunities to rebut evidence from satellite imagery or other remote data.
- The report identifies a handful of cases in which the Army Corps allegedly sought to regulate puddles or tire ruts on people’s land. Tellingly, most of these examples lack any kind of meaningful documentation, making it virtually impossible to assess the truth of the claims, or whether the sites actually contained protected wetlands. (Opponents of clean water protections often denigrate real water bodies as “puddles,” so the details actually matter.) Instead, the report typically relies on hand-picked photos and one-sided descriptions of the Corps’ views from project developers’ consultants, with little to no official information from the Corps itself. One would expect the Committee to have a far stronger basis before lodging an incendiary attack like this. In any event, if the Committee truly worries about whether tire ruts and puddles could be regulated, they should support, not attack, the Clean Water Rule, which explicitly exempts puddles, and which the agencies explain would similarly exempt water that temporarily accumulates in depressions like tire ruts.
- The final noteworthy “case study” in the report lambastes the agencies for protecting ephemeral streams—rain-dependent waterways that can be dry for extended periods of time. This example shows that the authors of the report and the industry opponents on whom the Committee relies simply don’t like the Clean Water Act itself. The law has protected streams that periodically dry up since Congress adopted it, and the case for doing so is even stronger today than in the past. As the agencies developed the Clean Water Rule, EPA undertook an extensive study of the function and importance of various kinds of water bodies; that analysis (which relies on more than 1,200 peer-reviewed pieces of scientific literature, and which itself was peer-reviewed multiple times) concludes, among other things: “The scientific literature unequivocally demonstrates that streams, individually or cumulatively, exert a strong influence on the chemical, physical, and biological integrity of downstream waters. All tributary streams, including perennial, intermittent, and ephemeral streams, are chemically, physically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported.”
In all, the Committee report utterly fails to make a convincing case of government overreach under even the existing requirements.
Why would the Committee put out such a useless report?
Once you strip away the layers of misleading rhetoric and the weakly-supported “case studies,” the real point of the report becomes evident. This is a purely political document.
At the same time the Committee released the report, the Committee Chairman, Senator James Inhofe (R-OK), publicized a letter he sent to 11 Senators who stood up to polluter pressure by voting against legislation to roll back the Clean Water Rule (and the Act itself), and who simultaneously urged the agencies to implement the new rule in a clear and certain fashion, consistent with historical practice. Senator Inhofe clearly wants to sway his colleagues to reverse course and join him in attacking the Rule.
Senator Inhofe must be hoping that his fellow Senators won’t read the report too closely, because it presents no new reason to oppose the Clean Water Rule and instead is a retread of the same polluter-led complaints that failed to convince these Senators to vote against clean water in the first place. I’m confident that this new gambit will also fail.