Everything you wanted to know about the EPA/Army Corps proposed clean water rules but were afraid to ask

Today is a big day in the world of water pollution control.  The Environmental Protection Agency and the U.S. Army Corps of Engineers have unveiled, and are asking for public comment on, updated rules that will determine what bodies of water are protected by the Clean Water Act, the nation’s principal safeguard against water pollution.  Although I’d like to think that I have a dedicated readership that has followed the development of this issue here on Switchboard since my first post on the topic six-and-a-half years ago (and many more since then), this important announcement warrants a full-on recap.  Brace yourself, it’s a long one!

What the heck is this all about?

Prior to 2001, virtually all streams, wetlands, lakes and other water bodies were understood to be covered by a variety of pollution control programs in the Clean Water Act.  As the General Accounting Office observed in 2004, because of a Reagan administration policy, “the Corps was able to regulate almost any body of water or wetland” under the Clean Water Act.  This approach was consistent with Congress’s intent, which is reflected by the Act’s application to “navigable waters,” which Congress broadly defined as the “waters of the United States,” and which Congress specifically understood to include all kinds of surface waters.  Under this approach, important physical, chemical and biological connections between upstream wetlands and tributaries and downstream (generally larger) waters were accepted and presumed to exist.  In the mid-80s, for instance, the Supreme Court unanimously rejected industry arguments that wetlands were not “waters of the United States,” deferring to the experts at EPA and the Corps to identify water resources the law must protect to serve the law’s clean water goals.

Beginning in 2001, this all changed.  That year, the Supreme Court invalidated the Reagan-era policy, which treated waters that could serve as habitat for birds migrating interstate as protected “waters of the U.S.”  Though that specific ruling was very narrow, the Court’s opinion included some language that industry lobbyists and their allies have argued calls into question the status of many upstream tributaries and wetlands.  A subsequent Supreme Court case in 2006 reached no majority opinion, further confusing the question of what is protected by the law.  To make matters worse, administration policies issued after each decision made it even harder to protect certain streams, wetlands, and other waters.  In all, this legal mess has jeopardized critical water resources that help prevent flooding, filter pollution, supply drinking water to millions of Americans, and provide critical fish and wildlife habitat. 

Really?  Can you point to real water bodies that have been threatened by this problem?

Examples of the kinds of waters that have been threatened by this legal limbo have been collected by EPA (scroll down to “Enforcement of the law has been challenging”) as well as by conservation groups in reports published in 2004 and in 2009.  A few of the thousands of examples include:

• EPA has acknowledged that, when “[c]rude oil was discharged into Edwards Creek, an intermittent stream near Talco, Texas (Titus County),” legal uncertainty undermined efforts to address the problem.  According to the agency, “[u]nder existing guidance, EPA did not attempt to pursue enforcement of this violation because it was too complex to prove the water was protected under the Clean Water Act.  No clean up was required under the Clean Water Act.  More than 50 percent of residents in Titus County get their drinking water from sources dependent on these kinds of creeks.”
• In November 2007, the Corps concluded that a 15-acre lake, which has a shoreline dotted with houses and boat docks and which is used for waterskiing, was not protected by the Clean Water Act.  The basis for this decision was that the lake was hydrologically “isolated” from other water bodies.
• Prairie potholes in the upper Great Plains are incredibly productive wetlands.  Labeled America’s “duck factory,” about half of the ducks hatched in North America every year come from the prairie pothole region. In addition, these often seasonal wetlands provide tremendous amounts of flood storage and pollutant filtration.  Yet these wetlands are routinely found not to be protected under the current approach; for instance, an approximately 400 acre wetland called Runner Slough in the prairie pothole region of North Dakota was declared not to be a protected “water of the United States.”
• On August 24, 2000, a pipeline operated by the Chevron Pipe Line Company failed, spilling 126,000 gallons of oil into a west Texas creek.  Yet when the U.S. sued Chevron Pipe Line for violating the Clean Water Act, a federal trial court in Texas ruled that because no water was flowing in the unnamed tributary at the time of the spill and the government had not demonstrated that the oil had reached a traditionally “navigable” water, the law did not apply.  The judge concluded that denying protections to these streams was consistent with the Supreme Court’s rulings.
• According to EPA, “[c]hallenges in proving jurisdiction hampered enforcement efforts when a large animal feeding operation in Georgia … discharged liquid manure to tributaries.  Unhealthy levels of viruses and bacteria were found downstream in Lake Blackshear, used for waterskiing and other water recreation.”

What did EPA and the Army Corps announce today?

To address the widespread uncertainty about the law’s scope, EPA and the Army Corps today proposed a rule that would provide a regulatory definition of “waters of the United States” that would apply to numerous pollution control programs the Act contains. 

The agencies’ proposal does a few things:

• It protects all tributary streams and waters adjacent to such streams or other covered waters (adjacent meaning along the bank of, or in the floodplain area of, covered waters), because the science confirms they have a significant effect on the biological, chemical, or physical condition of downstream water bodies that are navigable or that are interstate.
• It does not fully protect “other waters” – ones more distant from covered waters.  It would allow them to be protected if they are shown to collectively play a significant function with respect to downstream waters in the watershed.
• It lays out what activities and what water bodies are not covered by the law’s programs, by reaffirming a number of pre-existing exemptions and by codifying for the first time exemptions that had previously only been followed as a matter of administrative policy (for instance, stock ponds dug in uplands).  The rules will also specifically exclude certain things that nobody really thought were waters of the US, such as groundwater and tile drains.
• Explain that certain agricultural practices aimed at improving water quality are entitled to an exemption from the Corps’ permit program, an action the agencies made immediately effective. 

The proposal is supported by a detailed review of the scientific evidence of the role that certain kinds of waterways play in the aquatic ecosystem – a peer-reviewed report by EPA scientists that is currently being subjected to another round of review, this time by the independent Science Advisory Board.  Following public input on the proposal and the SAB’s final review of the scientific evidence, EPA and the Corps will issue a final rule, almost certainly in 2015.

What kinds of waterways are we talking about here, and is it a big deal if the law doesn’t apply to them?

The issue in these matters is whether and how to update current rules to better protect small and non-perennial streams and brooks as well as critical wetlands.  Headwater and irregularly-flowing creeks make up more than half the river miles in the continental United States, while wetlands filter polluted water, reduce the risk of flooding, and provide important wildlife habitat.

Nearly 2 million miles of the stream miles outside of Alaska -- about 60 percent -- do not flow year-round.  Approximately 117 million people in the lower 48 states “get some or all of their drinking water from public drinking water systems that rely at least in part on intermittent, ephemeral or headwater streams,” according to an EPA analysis of drinking water supplies that rely on small and non-perennial streams.  Moreover, “EPA estimates that more than 40 percent of the 37,000 permits with locational data discharge into either start reaches or intermittent/ephemeral streams, excluding Alaska.  Approximately 28 percent of these discharges are from municipal sewage treatment systems, systems that treat domestic sewage as well as wastewater from commercial and industrial users.”

Further, 20 percent of an estimated 110 million acres of wetlands in the continental United States are considered geographically isolated (because they lack an obvious surface water connection to other waters), making them vulnerable.

The current legal uncertainty is particularly hurting law enforcement.  According to a New York Times investigative story, in a four-year period, more than 1,500 major pollution investigations of “[c]ompanies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters [were] not being prosecuted, according to Environmental Protection Agency regulators working on those cases.”  As a consequence of the legal morass, an EPA analysis in 2011 said, “EPA enforcement managers have indicated that enforcement efforts are shifting from protecting small streams high in the watershed and instead are moving down river.  In short, EPA is focusing efforts on larger streams and rivers, where there is more certainty of establishing jurisdiction.”  In other words, we face an uneven pollution playing field, such that those dischargers located in obviously protected areas are more likely to be held accountable under the law than those located farther up the watershed.

In addition to the environmental resources at stake, it is difficult to overstate the importance of this issue to the efficient administration of the Clean Water Act.  Whereas “waters of the United States” are protected from pollution and destruction by the Clean Water Act‘s important programs, aquatic features that are not considered “waters of the U.S.” lack such protection under the federal Act.  Virtually every one of the Act‘s critical safeguards is linked to the presence of “waters of the U.S.,” including:

•  The national goal that pollutant discharges “be eliminated by 1985”;
• The absolute prohibition on discharging “any radiological, chemical, or biological warfare agent, any high-level radioactive waste, or any medical waste”;
• The core requirement that point sources discharging pollutants into waters must have a permit that minimizes their impact on receiving waters;
• The obligation that states develop water quality standards protecting uses like swimming and fishing and that EPA review them to ensure they are adequately protective;
• EPA‘s review of cleanup plans to restore polluted waters;
• The requirement to develop water body-specific control strategies to address toxic pollution problems that are not solved by discharge standards applicable to sources of such pollution;
• The obligation that states prepare biennial reports on water quality conditions;
• Protections against the discharge of oil or hazardous substances;
• The directive for states to develop management programs for non-point pollution, and the related directive that EPA provide grants to assist with the implementation of such programs;
• The requirement that applicants for federal permits obtain a state‘s certification that the discharge will comply with various provisions of the Act, including state water quality standards; and
• Restrictions on the disposal of sewage sludge.

If this is such a big deal, why are we just getting around to fixing the problem?

Alas, today’s proposal is not the first attempt to clear up the legal mess.  Since the Court ruled in 2001, there have been multiple efforts -- some by proponents of clean water protections, some by opponents – to address the proper scope of the law. 

In the immediate wake of the 2001 decision, EPA and the Corps developed policy guidelines for implementing it.  The guidelines directed field staff to get Headquarters permission before treating so-called “isolated” waters as covered by the law.  In practice, this policy was understood as, and effectively served as, a prohibition on protecting these waters; in a 2011 document, EPA stated that, since the 2001 Court ruling, “no isolated waters have been declared jurisdictional by a federal agency.”

At the same time that it put out its policy guidelines, the prior administration also initiated an effort to change the EPA and Corps clean water rules by seeking public comment on whether to significantly narrow what is considered a “water of the U.S.”  The general public and state officials strongly urged the agencies not to pursue such a rollback; as EPA later acknowledged, the agencies “received approximately 130,000 public comments, with over 99% of those comments opposed to any changes to the regulations that would reduce aquatic resource protection. An overwhelming majority of comments from States expressed strong opposition to rulemaking that could change the Federal-State-Tribal partnership under the CWA that protects our Nation's aquatic resources.”  Ultimately, the agencies abandoned this effort, but kept the weak policy guidelines in place.

Similarly, following the Supreme Court’s 2006 decision, the agencies issued additional policy guidelines that would only protect numerous streams and wetlands if an often time-consuming and resource-intensive process found them to be important for downstream waters.  This approach was particularly weak because it instructed pollution control officials to look very narrowly only at the waters of a particular stream “reach” in assessing their importance; as a result, it was challenging to show that a single tiny stream segment was important to a large downstream river, even though such streams are incredibly important in the aggregate.  Like the earlier policy, this one is still in effect today, and will be until the proposed rules are finalized.

For several years, clean water advocates urged Congress to legislatively overrule the Supreme Court’s misinterpretation of the law and restore clear protections under the Act.  In 2009, the Administrator of EPA, the Secretaries of Agriculture and Interior, the Acting Assistant Secretary of the Army for Civil Works, and the Chair of the Council on Environmental Quality wrote to Senate Environment and Public Works Chairman Boxer, strongly supporting legislation to restore protections.  Later that year, the Environment and Public Works Committee voted out a bill that sought to codify the scope of protections in place immediately before the Supreme Court ruled.  The EPW-passed bill garnered the support of the American Farmland Trust, the American Public Works Association, a wide variety of hunting and fishing organizations, the National Farmers Union, and many others.  For their part, opponents of legislation consistently argued that Congress should not act, but rather EPA and the Corps should adopt regulations identifying covered waters that accounted for the Supreme Court’s rulings.  (In fact, the agencies put out a document today that painstakingly summarizes the numerous calls for rulemaking.)  Progress toward a legislative fix ended with the shift in control of the House of Representatives following the 2010 elections; that body has repeatedly passed provisions (thankfully none of which have become law) that would embrace the current legal morass.

In response, the Obama administration moved to address the problem administratively.  Specifically, EPA and the Corps drafted “guidance” for agency field staff in April 2011, to replace the less protective policies of the prior administration.   The agencies received over 200,000 comments (the vast majority of which were supportive) from the public, but backed down on finalizing the guidelines after industry opponents and their allies in Congress attacked the proposal as covering too many waters and as a “backdoor” regulation without appropriate rulemaking procedures.  As a consequence, the weaker policies remain in effect today, denying or undermining protections for many waters that the Obama administration believes should be protected.

And that brings us to the current effort.  In September 2013, EPA provided an opportunity for the public to evaluate and comment on a report summarizing the peer-reviewed scientific literature that addresses the degree to which various kinds of tributaries, wetlands, and other water bodies have chemical, physical, or biological linkages to downstream navigable or interstate waters.  The agencies have committed to base the coverage of the final rule on the scientific evidence, and to preserve longstanding regulatory exemptions for various discharging activities.  The proposal announced today follows this approach; it would categorically protect tributary streams and waters adjacent to other protected water bodies, but not more distant waters, which the draft scientific report found to have a “gradient” of connection to downstream waters.  NRDC and other conservation advocates argue that the science supports even greater protections for these additional water bodies, but we also strongly support moving forward with the rule for public comment.

Okay, this is an important issue that we’ve been trying to address for a long time, but should we be worried about the economic impact? 

This proposal is good economic news, both because of the importance of water for businesses throughout the nation and because it will lead to enormous public benefits.  As EPA’s Acting Assistant Administrator for Water has testified, water is central to our economy:                                                                                                                                                                  

Consider these facts about the value of clean water to the U.S. economy: About 40 million anglers spend $45 billion annually to fish all kinds of waters.  Manufacturing companies use nine trillion gallons of fresh water every year.  The beverage industry uses more than 12 billion gallons of water annually to produce products valued at $58 billion.  Farms depend on clean water for irrigation – 31 percent of all surface freshwater withdrawals in the U.S. are for irrigation. And in an example nearby, the Chesapeake Bay is valued at $1 trillion for its fishing, tourism, property values, and other water dependent business.

And that is just part of the story.  In 2000, EPA reported that “[a] third of all Americans visit coastal areas each year, making a total of 910 million trips while spending about $44 billion. Coastal tourism supports businesses like hotels, resorts, restaurants, outdoor outfitters, chartered fishing services, cruiselines, and real estate and travel agencies.”  Approximately 38 percent of the U.S. population over 16 – 90.1 million people – participated in wildlife recreation in 2011, spending $145 billion.  Of those, the Fish and Wildlife Service reported that “[a]nglers spent $41.8 billion on trips, equipment, licenses, and other items to support their fishing activities in 2011.”  Economists estimate that a typical swimming day is worth approximately $35 to each individual; one study estimated economic losses as a result of closing a Lake Michigan beach due to pollution could be as high as $37,030 per day.

With respect to today’s proposal specifically, EPA has estimated that wetlands provide benefits on the order of $129,000-$292,000 per acre, considering factors such as flood control, pollution filtering, and recreation.  Using an alternative approach, EPA has indicated that per acre benefits vary regionally, but average $193,000.  In total, according to EPA, “[t]he proposed rule would provide an estimated $388 million to $514 million annually of benefits to public, including reducing flooding, filtering pollution, providing wildlife habitat, supporting hunting and fishing, and recharging groundwater. The public benefits significantly outweigh the costs of about $162 million to $279 million per year for mitigating impacts to streams and wetlands, and taking steps to reduce pollution to waterways.”

Wow, you sure have a lot to say on this.  Care to sum up?

For far too long, our water bodies have been vulnerable to pollution and destruction, despite what the leaders who adopted the Clean Water Act over four decades ago intended.  The EPA/Army Corps rulemaking provides the best hope for finally restoring clear Clean Water Act protections to a host of critical water resources around the country.  Now, the American public has a chance to weigh in.  Please support this effort in any way you are able, and please specifically call on the agencies to finalize a rule that protects all waterways that the best available science shows to significantly impact the biological, chemical, and physical condition of downstream waters.  In particular, please take a minute to submit an official comment to the agencies.  Thanks!