Conservative media are calling the Environmental Protection Agency's clarification of the Clean Water Act an “unprecedented land grab” that will regulate “nearly every drop of water.” However, the proposed revision, which will help protect the drinking water of 117 million Americans, will not add any new categories of waters but will clarify that upstream sources will be protected from pollution.
- Will There Be Any New Waters Added To EPA's Traditional Authority?
- Is This Action Unprecedented?
- Is The EPA Going Around Congress?
- Will The Rules Be Worth The Cost?
- Fox News co-host Heather Childers stated that “the EPA's latest move ... gives them control of all private property.” She went on to assert that the rule clarification “could be one of the biggest private property grabs in history, according to Republicans. The EPA wants control of all bodies of water, no matter how small, even if they're on private property.” [Fox News, Fox & Friends First, 3/26/14; Fox News, Fox & Friends First, 3/26/14]
- Fox News legal analyst Andrew Napolitano asserted on Fox & Friends that the EPA will use the rule to “regulate every body of water” and “control more behavior.” [Fox News, Fox & Friends, 10/22/13]
- The American Farm Bureau Federation published an op-ed in a newspaper serving the Gilroy, California area stating that “under the proposed rule, nearly every drop of water that falls would be regulated by the federal government.” [Gilroy Dispatch, 6/9/14]
FACT: EPA Is Not Adding Any New Types Of Waters To Their Protection
Associated Press: Rule Will Not Add “Any New Waters” Compared To Historical Authority.* The Associated Press reported that a joint rule proposed by the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers to clarify which waters are under protection from pollution under the Clean Water Act “wouldn't add any new waters” compared to its traditional authority but instead clarify that “seasonal and rain-dependent streams and wetlands near rivers and streams would be protected.” From the report:
The rule proposed by the EPA and the U.S. Army Corps of Engineers wouldn't add any new waters, but it clarifies that seasonal and rain-dependent streams and wetlands near rivers and streams would be protected. Others waters [sic] would be considered on a case-by-case basis to determine whether they affect the quality of downstream waters. The proposed rule also preserves exemptions already granted for agriculture. [Associated Press, 5/28/14]
Instead, Rule Will Clarify That Even Waterways That Sometimes Go Dry Are Under Protection If They Can Pollute Drinking Water. The Federal Water Pollution Control Act, commonly known as the Clean Water Act (CWA), which passed Congress in 1972, protects the major waterways of the United States, along with water bodies with a “significant nexus” to them. However, recent court rulings made it unclear whether or not “creeks that sometimes go dry” and “lakes unconnected to larger water systems” are covered under the Clean Water Act even though they are upstream sources that can pollute water used for drinking and recreation, as the New York Times explained:
The court rulings causing these problems focused on language in the Clean Water Act that limited it to “the discharge of pollutants into the navigable waters” of the United States. For decades, “navigable waters” was broadly interpreted by regulators to include many large wetlands and streams that connected to major rivers.
But the two decisions suggested that waterways that are entirely within one state, creeks that sometimes go dry, and lakes unconnected to larger water systems may not be “navigable waters” and are therefore not covered by the act -- even though pollution from such waterways can make its way into sources of drinking water. [New York Times, 3/1/10]
Rule Will Clear Up Years Of Confusion That Led To Major Pollution. As a result of the language dispute, polluters have been dumping into sources that affect drinking water without jurisdiction. As reported in the New York Times:
The Clean Water Act was intended to end dangerous water pollution by regulating every major polluter. But today, regulators may be unable to prosecute as many as half of the nation's largest known polluters because officials lack jurisdiction or because proving jurisdiction would be overwhelmingly difficult or time consuming, according to midlevel officials.
“We are, in essence, shutting down our Clean Water programs in some states,” said Douglas F. Mundrick, an E.P.A. lawyer in Atlanta. “This is a huge step backward. When companies figure out the cops can't operate, they start remembering how much cheaper it is to just dump stuff in a nearby creek.”
“Cases now are lost because the company is discharging into a stream that flows into a river, rather than the river itself,” said David M. Uhlmann, a law professor at the University of Michigan who led the environmental crimes section of the Justice Department during the last administration.
The Times included the following graph showing that many polluters are able to operate “beyond the law” in part due to the confusion:
[New York Times, 3/1/10]
EPA Will Also Reduce Jurisdiction Over Certain Waters And Give Exemptions To Agriculture. The EPA explains on its website that the rule "[d]oes not expand jurisdiction over ditches" and “actually proposes to reduce jurisdiction and exclude certain ephemeral and intermittent ditches” and will also preserve the many exemptions that exist for agricultural and conservation practices. The agency states that:
The proposed rule will NOT:
• Cover groundwater
• Cover tiles drains
• Increase regulation of ditches
• Protect any new types of waters
NRDC's Switchboard further explained that the rule will exempt “normal farming” practices:
Simultaneously with this proposal, EPA and the Corps declared that 56 different agricultural/conservation practices qualify as “normal farming,” making them generally exempt from Corps' permitting. They also made these exemptions immediately effective.
Because the proposal would restore protections to streams and wetlands that help prevent flooding, filter pollution, supply drinking water to millions of Americans, and provide critical fish and wildlife habitat, a wide variety of people and citizen groups have praised EPA and the Corps for moving forward and putting it out for public comment. These supporters include the National Farmers Union and the Center for Rural Affairs, along with many individual farmers. [NRDC, 5/6/14]
- Fox Business' Lou Dobbs claimed on his show that the clarified jurisdiction represented “unprecedented control over private property” -- “maybe” extending to “mud puddles.” [Fox Business, Lou Dobbs Tonight, 10/22/13]
- Bret Baier said that “some are terming” this change the EPA's “biggest land grab ever” on the May 29 edition of Special Report with Bret Baier. [Fox News, Special Report with Bret Baier, 5/29/14]
- Ravalli Republic published an op-ed from the Iowa Farm Bureau president stating that the Clean Water Act “amounts to nothing less than federal veto power over a farmer's ability to farm.” [Ravalli Republic, 6/19/14]
- The conservative blog Breitbart called it “one of the biggest land grabs by the federal government ever perpetrated on the American public.” [Breitbart, 3/26/14]
FACT: Government Will Cover Fewer Bodies Of Water Than They Did Under Reagan
Under Reagan-Era, The Corps' Authority Over Waters Was More Expansive. NRDC's Switchboard explained:
[The rule change will] still be less inclusive than Reagan-era policies. Yes, you read that last part correctly - under President Reagan, the law was applied to any water body that could serve as habitat for migrating birds; as the independent Government Accountability Office (then called the General Accounting Office) found in 2004, under that policy, “the Corps was able to regulate almost any body of water or wetland.” This rule would not reinstate that policy, but instead would only protect waters with a demonstrated and significant impact on the physical, chemical, and biological condition of downstream water bodies. [NRDC, 5/6/14]
Supreme Court Decisions Narrowed Protection, Opened Up Loopholes. Two Supreme Court cases significantly narrowed the definition of “navigable waters” to establish that water bodies that possess a “significant nexus” -- that is, they are close to and physically affect the navigable waters under protection:
Justice Kennedy concluded that the Sixth Circuit correctly recognized that a water or wetland constitutes “navigable waters” under the Act if it possesses a “significant nexus” to waters that are navigable in fact or that could reasonably be so made, Solid Waste Agency of Northern Cook Cty. v. Army Corps of Engineers, 531 U. S. 159 (SWANCC), but did not consider all the factors necessary to determine that the lands in question had, or did not have, the requisite nexus.
Absent more specific regulations, the Corps must establish a significant nexus on a case-by-case basis when seeking to regulate wetlands based on adjacency to nonnavigable tributaries, in order to avoid unreasonable applications of the Act. [Rapanos v. United States, 6/19/06]
The New York Times explained that in both cases, “dissenting justices warned that limiting the power of the federal government would weaken its ability to combat water pollution.” [New York Times, 3/1/10]
Obama Administration Proposal Simply Revives Policy That Bush Blocked. In an article titled “Obama proposal would resurrect policy that industry blocked under Bush,” the newswire E&E News reported:
In 2006, developers, mining companies and agribusinesses convinced the George W. Bush administration to scale back a proposal that would have widened federal protections for wetlands and waterways in the wake of a muddled Supreme Court ruling on Clean Water Act enforcement.
But just before the release of the regulatory guidance, an industry attorney who had snared a leaked copy objected in emails to the White House.
The Bush administration pulled back the proposal, and the White House Council on Environmental Quality launched a nine-month review. When the guidance was finally released in June 2007, its interpretation of federal regulatory authority was narrower than what U.S EPA and the Army Corps of Engineers had proposed.
Now, the Obama administration is reviewing another Clean Water Act enforcement guidance that would not only replace the 2007 policies but also revive language that industry groups killed in the Bush years. [E&E News, 4/18/12]
- An article published in the Arizona Republic touted the conservative claims that the clarification is “executive fiat,” and that the EPA is “bypassing Congress” to issue a guidance that “literally threatens the fabric of the republic.” [Arizona Republic, 6/2/14]
- An opinion writer for the Buffalo News wrote that the EPA and other agencies will be “loosed on businesses and other job creators by fiat; by direct order under the government's vast and growing rule-making powers.” [Buffalo News, 5/12/14]
- A Norfolk Daily News op-ed written by the president of the Nebraska Farm Bureau Federation wrote that the EPA “has no legal obligation” to grant permits that will come with the Clean Water Act. [Norfolk Daily News, 1/10/14]
FACT: Guidance Is In Line With The Intent Of The Clean Water Act
Clean Water Act Intended To Protect “Nation's Waters.” The stated objective of the Federal Water Pollution Control Act was to “restore and maintain the chemical, physical and biological integrity of the Nation's waters.” [EPA.gov, accessed 6/11/14]
Bush Admin. Official: “Broad Definition” Of Waters Is Part Of Commonsense Approach “Congress Intended.” William K. Reilly, the EPA administrator under President George H.W. Bush, once stated that a “broad definition” of the “waters of the United States” is necessary and falls in line with the “goals of the Act.” The Sierra Club quoted Reilly as stating:
It is reasonable and sensible to have a broad definition of 'waters of the United States' for purposes of the Clean Water Act. The goals of the Act require it. How else can we restore and protect valuable water resources if the only protected waters are those navigable-in-fact? Water and pollutants flow into larger water bodies from smaller ones. We need the commonsense approach that Congress intended in the Clean Water Act to protect our nation's waters broadly so that we can reduce discharges of pollutants and ultimately achieve the goals of the Act - making all waters swimmable, fishable, and safe for other uses." [Sierra Club, accessed 6/11/14]
Scientific Assessment: Streams And Wetlands Have “Important Effects” On Downstream Waters. The EPA commissioned the independent Scientific Advisory Board to conduct a scientific assessment over the waters in question. Their findings were published in a report titled Connectivity of Streams and Wetlands to Downstream Waters, and provide scientific basis for the joint rule. A draft assessment found that intermittent streams (streams that sometimes go dry) “have important effects on downstream waters” and that wetlands and floodplains “strongly influence downstream waters by affecting the flow of water” and “trapping and reducing nonpoint source pollution”:
- Streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters. These streams supply most of the water in rivers, transport sediment and organic matter, provide habitat for many species, and take up or change nutrients that could otherwise impair downstream waters.
- Wetlands and open-waters in floodplains of streams and rivers and in riparian areas (transition areas between terrestrial and aquatic ecosystems) are integrated with streams and rivers. They strongly influence downstream waters by affecting the flow of water, trapping and reducing nonpoint source pollution, and exchanging biological species.
- Finally, there is insufficient information to generalize about wetlands and open-waters located outside of riparian areas and floodplains and their connectivity to downstream waters. [EPA.gov, accessed 6/11/14]
- The Arizona Republic editorial board claimed that the rule will be “redundant, pointless and enormously expensive.” [ Arizona Republic, 5/18/14]
- An article in the Des Moines Register repeated the fears that the rule “will be costly and burdensome,” comparing it to other proposals that “would have hurt the agricultural community.” [Des Moines Register, 6/28/14]
- The Iowa Farm Bureau's president wrote an op-ed in Iowa Farmer Today stating that the rule will require “expensive permitting and hoop-jumping” that will be a “disincentive to conservation progress farmers want and have been making.” [Iowa Farmer Today, 6/13/14]
FACT: Rule Will Protect Drinking Water And Prevent Flooding, Resulting In Net Economic Benefits
Rule Would Provide Hundreds Of Millions In Net Economic Benefits. A cost-benefit analysis conducted by the EPA and the U.S. Army Corps of Engineers found that economic benefits from the rule will greatly outweigh the costs in every scenario examined, with net benefits of up to $352 million. The analysis, summarized on the EPA's website, stated that these benefits range from reduced flooding to supporting hunting and fishing:
The proposed rule would provide an estimated $388 million to $514 million annually of benefits to the 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 $278 million per year for mitigating impacts to streams and wetlands, and taking steps to reduce pollution to waterways. [EPA.gov, March 2014; EPA.gov, accessed 6/30/14]
Rule Will Help Minimize Flood Damages, Saving Millions. According to a draft report conducted by the EPA's Office of Research and Development (ORD), the water rule will protect wetlands that could help prevent $30 billion each year in damages from flooding. Nick Bennett, of Maine's Natural Resources Council, explained how this will play out in a Portland Press Herald op-ed:
Another big plus of the clean water rules: They will help minimize flooding. Wetlands act as natural water storage ponds; when they are paved over, all of their water has no place to go and is much more likely to threaten Maine towns and homes. Wetlands in Maine and across the continental United States save as much as $30 billion in annual flood damage repair costs. [Portland Press Herald, 6/26/14]
Millions Of Americans Fall Ill Each Year From Contaminated Tapwater. The New York Times compiled a comprehensive collection of hundreds of water pollution records in 2009 and determined that “an estimated one in 10 Americans have been exposed to drinking water that contains dangerous chemicals or fails to meet a federal health benchmark in other ways.” They cited a study published in the Reviews of Environmental Contamination and Toxicology finding that “an estimated 19.5 million Americans fall ill each year from drinking water contaminated with parasites, bacteria or viruses.” [New York Times, 9/13/09]
The Rule Will Help Protect Drinking Water of 117 Million Americans. The many intermittent streams and wetlands that the rule seeks to clarify as under protection affect the tapwater of 117 million Americans, according to the results of a series of geographic information systems (GIS) that the EPA performed with data from the National Hydrography Dataset Plus and the Federal Safe Drinking Water Information System. From the report:
The objective of this study is to illuminate regional patterns of dependence on intermittent, ephemeral and headwater streams for water to supply public drinking water systems in the United States, using the most recent, valid data available.
In the continental United States, approximately 117 million people, over one third of the total U.S. population, 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. This represents 94% of the approximately 124 million people who are served by public drinking water systems included in this analysis.
In the continental United States, 357,404 total miles of streams provide water for public drinking water systems that use surface water. Of that total, 58% (207,476 miles) are intermittent, ephemeral or headwater streams. [EPA.gov, 12/28/09]
Image at top obtained via Flickr user opacity with a Creative Commons license.
*Language has been updated for clarity.