It sometimes seems like the GOP wants to roll back all the progress made on behalf of the public good during the 20th Century - removing women's rights to make their own health decisions, eliminating protections for workers and the ability to earn a living wage, allowing monopoly power to corrupt the free market and buy politicians, concentrating wealth at Gilded Age levels .... Now they’re working to add "Clean Water" to the list. The EPA wants to clarify rules that restore Congress’ original intent behind the Clean Water Act, but GOP opponents in Congress continue to muddy the waters with lies. You’ve likely heard about this debate, but you may not be familiar with the background. The arc of the story will sound familiar:
Jerk flaunts the law and becomes hero of conservatives. Activist Supreme Court ignores precedent and common sense to roll back existing law to benefit corporate interests. Congress can't muster support to reinstate protections. Obama Administration steps into the void to remedy the situation. Conservatives in Congress decry overreach and try to block the Administration’s proposal, supported by right wing organizations and media spouting misinformation. Same song, different verse.
At issue is the definition of "Waters of the United States". While it sounds pretty arcane, it is a BFD. This definition determines which waterways are - and are not - protected under the Clean Water Act, and the Administration's proposal would help restore protection to many waters that were cast out by recent Supreme Court decisions. If Congress blocks this rulemaking, it will erode decades of progress made in improving America's water quality. It wasn't that long ago that we literally had urban rivers on fire, and apparently some aren’t satisfied with burning fossil fuels and want to roll back the clock so we can burn our rivers as well.
The backstory - and more on the proposed EPA/Corps rule, which is out for public comment through October - below the fold.
For its first three decades, the Clean Water Act, passed during the Nixon presidency, was remarkably successful in improving the nation’s water quality. In 2001, the Supreme Court made its first dent in the Act's coverage in the case of Solid Waste Agency of Northern Cook County vs. U.S. Army Corps of Engineers, a 5-4 ruling that isolated ponds could not fall under the protections of the Clean Water Act, as the Corps had previously asserted on the basis of use by migratory birds. For sportsmen groups like Ducks Unlimited, who care that migratory birds need wetlands along their flyways, excluding these isolated waters from "waters of the United States" was a major setback. In the story of protecting water quality, it was only a small preview of the next decision.
Enter John Rapanos, a Michigan developer who wanted to build a shopping center on a 230-acre property with a number of wetlands on it. The history of Rapanos, his disregard for the law, and his general dickishness, is laid out by Justice John Paul Stevens in his dissent on the Rapanos decision:
An MDNR inspector informed Rapanos that the land probably included wetlands that were "waters of the United States" and sent him an application for a permit under §404 of the Act.1 Rapanos then hired a wetland consultant, Dr. Frederick Goff. After Dr. Goff concluded that the land did in fact contain many acres of wetlands, "Rapanos threatened to 'destroy' Dr. Goff if he did not destroy the wetland report, and refused to pay Dr. Goff unless and until he complied." Ibid. In the meantime, without applying for a permit, Rapanos hired construction companies to do $350,000 worth of work clearing the land, filling in low spots, and draining subsurface water. After Rapanos prevented MDNR inspectors from visiting the site, ignored an MDNR cease-and-desist letter, and re-fused to obey an administrative compliance order issued by the EPA, the matter was referred to the Department of Justice. In the civil case now before us, the District Court found that Rapanos unlawfully filled 22 acres of wetlands.Incidentally, Rapanos took a similar approach to two other sites that also became part of his challenge to Clean Water Act jurisdiction, Rapanos v. United States.
The Supreme Court had clear precedent supporting Clean Water Act jurisdiction. As noted by Justice Stevens in his Rapanos dissent, the Supreme Court in the 1985 Riverside Bayview case asked - and answered (unanimously) in the affirmative - the question of whether the Clean Water Act "authorizes the Corps to require land-owners to obtain permits from the Corps before discharging fill material into wetlands adjacent to navigable bodies of water and their tributaries." 474 U. S., at 123. Given Congress' clear intent for the Clean Water Act to protect water quality - and the simple fact that water flows downhill so protecting downstream rivers also depends on protecting the tributaries and wetlands that influence water quality in those rivers - the Rapanos case should have been an open and shut ruling in support of the Corps.
But neither precedent, nor 30 years of established administrative implementation of the Clean Water Act, nor Congress' clear intent to protect water quality, were persuasive to the Court's plurality, led by Justice Antonin Scalia. You need not read far into their opinion to understand some of the motivation for this judicial activism:
The burden of federal regulation on those who would deposit fill material in locations denominated "waters of the United States" is not trivial. In deciding whether to grant or deny a permit, the U. S. Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot ... "[O]ver $1.7 billion is spent each year by the private and public sectors obtaining wetlands permits."In Scalia's mind, because the Corps actually tries to protect water quality and wetlands under legislation Congress designed for that intent, they are despots shamelessly sucking money from the pockets of developers. So - he must ride in to save the day.
Since he can't really rely on the Court's own precedent in Riverside Bayview, Scalia turns to Webster's 1954 New International Dictionary to determine that "waters" are "[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes," ... and then goes on to suggest that all of these water bodies are continuously present, fixed bodies of water. “Even the least substantial of the definition’s terms, namely ‘streams’ connotes a continuous flow of water in a permanent channel,” Scalia proclaims.
This is a dubious assertion in wetter climes, and one that completely ignores reality in the west. I happen to live in Colorado – an arid western state. The Colorado Division of Wildlife identifies 75% of Colorado’s stream miles as being ephemeral or intermittent – in other words, a full three quarters of our streams lack the “continuous flow” that Scalia’s definition requires. He must not have bothered to look for a definition of “intermittent stream” – the commonly accepted term for the waters that he assures us are not “streams”.
The rub comes in that Scalia’s plurality hold that the Clean Water Act only applies to those more permanent water bodies – though in a footnote he does generously note that he doesn’t mean to exclude streams that run dry during extreme events such as drought or “necessarily” to exclude seasonal rivers that may flow for 290 days – an example proposed in Stevens’ dissent. But his interpretation spells disaster for western watersheds. First, intermittent and ephemeral streams are important ecologically, and help sustain important riparian habitats, which in the arid west support 80% of species for a portion of their life cycle despite representing only about 1% of the land area. Secondly, plain common sense recognizes that water flows downhill. If we allow pollution or destruction of waterways – whether they flow year round or not – the problems we’ve created there will make their way downstream when flow resumes.
Rapanos, though, was not a typical conservative 5-4 decision. Rather it was an unusual 4-1-4 decision. Justice Kennedy joined with Scalia in the ruling, but offered a strikingly different legal basis. And ironically, because his is the interpretation which establishes a majority basis for determining what is or is not a “water of the United States”, the ruling of a single justice is determined the fate of Clean Water Act jurisdiction.
Kennedy looked to past decisions that supported Clean Water Act jurisdiction in some areas (Riverside Bayview) or that rejected such jurisdiction in other areas (SWANCC) and concluded that the key question was whether a water had a “significant nexus” with navigable-in-fact waters.
Taken together these cases establish that in some instances, as exemplified by Riverside Bayview, the connection between a nonnavigable water or wetland and a navigable water may be so close, or potentially so close, that the Corps may deem the water or wetland a "navigable water" under the Act. In other instances, as exemplified by SWANCC, there may be little or no connection. Absent a significant nexus, jurisdiction under the Act is lacking. Because neither the plurality nor the dissent addresses the nexus requirement, this separate opinion, in my respectful view, is necessary.
In a nutshell, that is what Kennedy found. In order to establish Clean Water Act jurisdiction, there must be a significant nexus for waters and similarly placed waters – either individually or cumulatively – with navigable waters. And because of the dynamics of the 4-1-4 decision, his interpretation became the law of the land.
Unfortunately, this has thrown Clean Water Act administration into a major quagmire, as many permitting processes become bogged down in an initial assessment to determine whether a significant nexus exists or not. It has left intermittent and ephemeral streams open to abuse at the expense of the chemical, physical and biological integrity of our nation’s waters that the Clean Water Act set out to protect. Many of these streams represent the headwaters of our river systems, so the loss of their protection has impacts all the way downstream.
Interpretations have been all over the board, but the worst-case scenarios have come to pass in at least some locations. For example, in the United States v. Chevron Pipe Line Company case, the U.S. District Court for Northern Texas ruled that a discharge of 3000 barrels of crude oil into an intermittent stream could not be subject to Clean Water Act enforcement because the discharge was not made into navigable waters. Chevron Pipe claimed to have completed clean-up of the spill prior to the first rainfall that led to flow in the stream in question, yet even in reports from the two months following that rainfall, the Texas Railroad Commission (part of a state government hardly well known for its excessive regulatory zeal) Field Inspection Reports stated that there was “[s]till oily soil present in the draw … [and a] good deal of work left to be done.”
Back in 2009 and 2010, Congress was considering legislation to clarify its intent and to restore Clean Water Act protections to waters thrown into question by the Rapanos (and SWANCC) decisions. The Clean Water Restoration Act would have made clear that Congress did intend to extend the reach of the Clean Water Act more broadly, within its Constitutional authority – as had been done for 30 successful years of pollution-fighting before the Supreme Court muddied the waters. Former Minnesota Congressman Jim Oberstar sponsored the legislation, but ultimately – with significant Blue Dog opposition despite Democratic control of the House of Representatives – was unable to move the bill.
It has been a long time in coming, but in April 2014, the Army Corps of Engineers and Environmental Protection Agency published a proposed rule in the Federal Register on its “Definition of ‘Waters of the United States’ Under the Clean Water Act”
The rule works with the “significant nexus” test set forth by Justice Kennedy, and it built off an extensive EPA Office of Research and Development scientific review of the peer-reviewed literature – more than 1000 publications were reviewed in developing the report, and an impressive panel of academic experts assisted in its development and review.
The core findings of the report (“Connectivity of Stream and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence”) are rigorously supported, but unsurprising to anyone who has spent much time looking at watersheds and their connectivity, or simply thought about the common sense of how water (and the substances it carries) move downstream:
The scientific literature demonstrates that streams, individually or cumulatively, exert a strong influence on the character and functioning of downstream waters. All tributary streams, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported. Headwater streams (headwaters) are the most abundant stream type in most river networks and supply most of the water in rivers. In addition to water, streams transport sediment, wood, organic matter, nutrients, chemical contaminants, and many of the organisms found in rivers. Streams are biologically connected to downstream waters by the dispersal and migration of aquatic and semiaquatic organisms, including fish, amphibians, plants, microorganisms, and invertebrates, that use both up- and downstream habitats during one or more stages of their life cycles, or provide food resources to downstream communities. Physical, chemical, and biological connections between streams and downstream waters interact via processes such as nutrient spiraling, in which stream communities assimilate and chemically transform large quantities of nitrogen (N) and other nutrients that would otherwise increase nutrient loading downstream.The report finds a similar influence (i.e. – a “significant nexus”) for wetlands and open waters that have bidirectional connection with these streams (have water flowing both in and out at times). For isolated waters such as playa lakes and prairie potholes that lack such a connection, there is not such a clear picture of influence on other waters – there may be a significant nexus but a more site-specific assessment would be needed to document it.
With this scientific underpinning, the EPA and Corps have proposed extending the definition of “Waters of the United States” to include those tributary streams – including intermittent and ephemeral streams – and their associated wetlands as waters of the United States protected under the Clean Water Act. Specifically, the rule would define jurisdictional waters to include (emphasis added):
• All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;Predictably, as the EPA and Corps proposal was developed and ultimately rolled out, the truth-impaired right-wing talking heads expressed their horror that big gubmint would take such action to protect water quality:
• All interstate waters, including interstate wetlands;
• The territorial seas;
• All impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary;
• All tributaries of a traditional navigable water, interstate water, the territorial seas or impoundment;
• All waters, including wetlands, adjacent to a traditional navigable water, interstate water, the territorial seas, impoundment or tributary; and
• On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a traditional navigable water, interstate water or the territorial seas.
I do have to give the Missouri Farm Bureau some credit for creativity, though not for accuracy, with their spoof video opposing the rule to the tune of “Let It Go.”
In response to these non-facts, EPA has even set up a “Ditch the Myth” website to dispel some of the misinformation out there. The Farmers Union also dispels the myths about how this rule would “harm” agriculture. In a nutshell – the rule will not lead to that puddle in your backyard being regulated, it maintains the Clean Water Act’s longstanding exemption for traditional farming practices so those farmers will not need permits to maintain their fence or plant their crops, and EPA is not making a massive land grab.
But the beat goes on in Congress. The House Appropriations subcommittee has attached a rider to block the rule, while Senate legislation has been proposedto prevent the EPA and Corps from finalizing the rule. If Republicans in Congress have their way, we’ll leave those 75% of waters in my home state and nearly 60% of streams nationwide that are ephemeral and intermittent in a regulatory limbo, their protection dependent on inconsistent interpretations of the existing legal standards and costly and time-consuming case by case assessments. Protection will suffer, and permitting will continue to be delayed.
While so far it has been GOP-driven opposition, the keys to keeping the Clean Water Act rulemaking on track may be ensuring that Democrat Senators hold firm in opposing legislation to block it. So if you’ve waded through this much to read the story behind this rulemaking I hope you’ll take a few minutes to contact your Senator and tell them to support the Administration’s “Waters of the United States” rule – and if you are even more motivated, take a moment to submit comments to the EPA and Corpssupporting the rule before the October 20 public comment deadline (the website still references the original July comment deadline, but the comment period was extended by three months).
I’ll close on a promising note: the President has personally supported the effort. At the League of Conservation Voters he cast his lot with the supporters of Clean Water. “And I’m not just going to stand with environmentalists -- I’m going to stand with sportsmen and conservationists against members of Congress who want to dismantle the Clean Water Act," the President said. "We’ve got to dredge up that old tape of the Cuyahoga River on fire, and the Chicago River, and just remind people that this thing worked. It was one of the great achievements of modern American politics ... realizing that we didn’t have to trade off a healthy environment for our kids and economic growth."
So the President has our back – we need to stand with him and fight to preserve one of the landmark environmental laws of the 20th Century and not let the GOP roll the clock back on clean water.