The Unclean Water Rule

This post builds from an interview with the author for WYPR's The Environment in Focus with Tom Pelton, a portion of which aired on Wednesday, July 12, 2017.

One question I've been asked a number of times over the last several years is, "What does the Clean Water Rule mean for the Chesapeake Bay?" With EPA's recent proposal to repeal the rule, I'm once again hearing questions and speculation about what this repeal will mean for the Bay watershed.

I think the average person is rightly confused about the Clean Water Rule, sometimes called the Waters of the United States rule, and why they hear so much about it. Whereas most disputes involving environmental law are about providing the right standard or level of protection, the Clean Water Rule was simply about drawing clear boundary lines around waters that are and are not protected by the Clean Water Act in order to make the process of identifying these waters more predictable and consistent with the latest science. And whereas some rules can be game changers (e.g. the Clean Power Plan), completely altering the way pollution is regulated, the Clean Water Rule wasn't one of them – in fact, the rule only came about as a way to restore things to where they were during most of the George W. Bush years.

When the Clean Water Rule was first released in 2015, the reaction from industry lobbyists and their favorite lawmakers in Congress was a headscratcher. I thought, these people can't be reading the same proposal that I'm looking at.

On one side, industry lobbyists were seemingly losing their minds talking about "a massive land grab" and serving up the same tired refrain of "federal overreach" by EPA. On the other hand, some environmental organizations were disappointed that the rule didn't go far enough in protecting sensitive waters. Meanwhile, EPA devoted a considerable amount of time working with stakeholders, explaining the rule's impact, and calculating the minor increase or decrease in the extent of protected streams and wetlands (a slight increase compared with the status quo, but a decrease compared with the situation in 2006 before the Supreme Court's decision in Rapanos v. United States).

So if the rule is only about drawing clear lines and the lines weren't moved all that much, then why is its repeal such a big deal? What has outraged so many people is not just what EPA's rollback does, but how EPA went about accomplishing it. The rollback of the Clean Water Rule is just the latest example of the current hostility to science and evidence-based policymaking at EPA.

It's instructive to contrast the development of the Clean Water Rule with the abbreviated process resulting in last month's proposed repeal. Decades of scientific research went into researching and drafting the Clean Water Rule, reflecting a substantial advancement in knowledge about the immense and disproportionate value that little streams and wetlands play in protecting drinking water and reducing pollution.

A few decades ago, permitting staff at the Army Corps of Engineers would literally try to jump across streams in some areas to figure out whether they were big enough to qualify for protection or whether they could be filled in by developers. Clearly, science has come a long way since then, and EPA wanted to incorporate this advancement into its Clean Water Act oversight. That's how regulatory policy works when agencies are staffed with professionals dedicated to good government and serving the public interest.

Last month's proposal, by contrast, was completely devoid of science and virtually devoid of any legal or policy justification, as well. The rushed deregulatory effort replaces what most independent and impartial experts agree was a modest and well-reasoned rule backed by volumes of the latest science with – well, almost nothing.

If the same level of thought and consideration that was put into EPA's proposed repeal was used by doctors, engineers, and scientists, we'd be back in the Middle Ages. If your child put this same level of analysis into his or her homework, you'd be the parent of a perpetual 5th grader. It is a bizarre and troubling time when the government is openly hostile to scientific knowledge, critical thinking, and protecting the public interest.

Beyond the total lack of science and reason that went into last week's proposal, legal scholars also point out that the rollback is likely inconsistent with federal administrative law. This is why we've now seen an attempt by some lawmakers to attach a provision to a budget bill that would create a special loophole to protect this rollback, exempting it from normal rulemaking laws and processes. Administrative law, while little known by most of the public, is important for just this reason – it requires good governance and prohibits arbitrary and ill-conceived attempts to give away goodies to special interests while ignoring what is best for the rest of us.

And what about the impact of the rule and its repeal on the Chesapeake Bay? The short answer is that we simply have much less water in the Bay region that falls into the legal gray area that the Clean Water Rule was meant to address. That gray area mostly surrounds intermittent and ephemeral streams and isolated wetlands. Here in the Mid-Atlantic region, we have a lot of coastline, open tidal waters and wetlands, and long rivers and tributaries with water that flows all year round – even in many of the smaller streams. These are waters to which the Clean Water Act clearly applies. But it's not the same way in many other parts of the country, particularly in the wide open spaces and more arid parts of our nation.

In much of the Midwest and Great Plains, the weather and precipitation patterns, levels of water use or waterway modification, topography, the extent of land development, particularly from agriculture and resource extraction industries, and even culture, history, and state water laws all combine to make it the epicenter of impact for the Clean Water Rule. Whatever the reasons, data kept by the Army Corps of Engineers show that their Clean Water Act permitting work is much more extensive in the Midwest and other regions than it is in the Chesapeake Bay watershed.

That's not to say that rescinding the rule isn't outrageously bad policymaking, that it won't lead to inconsistent permitting decisions, or that we won't see an incremental increase in stream and wetland destruction. In one fell swoop last month, EPA erased decades of research designed to protect our waters in a way that would have made life easier for both regulators and the regulated community by adding clarity, certainty, and consistency. Welcome to the new EPA.