Environmental policy paper: Why the Clean Water Rule should be refined, not retracted

The Clean Water Act (CWA) was passed in 1972 with bipartisan support in the United States Congress to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters” (Federal Water Pollution Control Act, 2002). The act gave the US Environmental Protection Agency (EPA) the ability to set water pollution standards and made it illegal to dump pollutants into “navigable waters” from any point source (Environmental Protection Agency, 2017). The CWA, in the 40 plus years it has been law, has been largely successful at reducing point source pollution and improving water quality. However, as point sources of water pollution like industrial and sewage discharge pipes have been fixed, non-point sources like agricultural and urban runoff have gained influence over water quality in the United States (Lyon & Stein, 2009). Additionally, the CWA only regulated “waters of the United States”, of which the legal definition has changed over time—from just “navigable waters”, i.e. waters that are navigable by boat, to eventually include waters that have “significant nexus” to waters that are navigable (Rapanos v. United States, 2006). What constitutes “significant nexus” is left up to interpretation. In short, decades after its initial passage, it is still not clear what bodies of water are covered under the Clean Water Act.

In an attempt to address these shortcomings of the CWA, the Obama administration proposed the Waters of the US rule, also known as the Clean Water Rule (CWR), to clarify “the scope of ‘waters of the United States’ protected under the [Clean Water] Act” (Clean Water Rule, 2015). After several states challenged the legality of the rule, a federal court of appeals blocked its implementation across the United States (Cama, 2015). The administration was unable to codify the rule before President Obama left office. President Trump dealt the rule another blow in the first few weeks of his presidency, ordering a complete review of the CWR, calling the rule a “massive power grab” by the federal government (Exec. Order No. 13778, 2017; The White House, 2017). President Trump argued that the CWA’s purpose was to “regulate ‘navigable waters’–meaning waters that truly affect interstate commerce” (The White House, 2017). Trump’s remarks show a fundamental misunderstanding of hydrology–the science of how water moves through landscapes in a continuous cycle. Research shows that small streams and isolated wetlands covered under the CWR do have significant impact on traditional “navigable waters”, and by extension, nation-wide commerce. Therefore, it is in America’s economic interest to protect these waters at the federal level, not just at the state or local level.

Arguments for the Clean Water Rule

The purpose of Obama’s Waters of the US rule was to clearly define what qualifies legally as “waters of the United States”. Under the final rule, the definition includes bodies of water widely understood to be covered by the Clean Water Act: traditional navigable waters, interstate waters (bodies of water that cross state lines), and territorial seas (the strips of US-controlled ocean on US coasts). But the CWR controversially expanded the definition of “waters of the US” by including streams and wetlands considered by many to be too small or too isolated to impact water quality in traditional “waters of the US”.

Under the CWR, headwater streams, the smallest streams in a stream network, qualify as tributaries and are therefore considered “waters of the US” (Clean Water Rule, 2015). The EPA website suggests many scientific papers as background reading to justify this aspect of the rule. One study the EPA cites, conducted by a group of scientists from various government agencies and universities, investigated the importance of small streams in the southwest US that don’t necessarily carry water year-round (Levick et al., 2008). Despite their size and inconsistency, the study found that intermittent or ephemeral stream systems make up a significant portion of watersheds in the southwestern US. The study uses that conclusion to argue that these small streams can’t be treated as isolated water sources; they must be managed and regulated as part of the whole watershed.

Another study attempted to quantify the effect of these small streams on whole watersheds. Alexander et al. found that headwater streams contribute 55% of water volume and 40% of nitrogen flux to streams with fourth-order status or higher (fourth-order streams would be considered navigable under the law) (2007). Those are not insignificant percentages. The authors their results show headwater streams “demonstrably” influence the larger downstream waters currently regulated under the Clean Water Act. Their modeling of nitrogen affects downstream are especially revealing; they estimate that if the land cover is changed around a percentage of headwater streams, nitrogen load downstream will change by half that percentage. So if 50% of the basins draining into headwater streams in a watershed suddenly produce more nitrogen (a likely outcome if they are converted to farmland, for example), then the nitrogen load downstream will increase by 25%.

A review paper summarizing the EPA’s 400-plus page report that aggregated all the science behind the new WOTUS rule summarized the importance of smaller streams to downstream water quality perfectly; the author found that streams contribute most of the water that ends up in rivers, and all river tributaries (no matter what size) are connected to larger bodies of water chemically, physically, and biologically (Alexander, 2015). Since the Clean Water Act aimed to “restore and maintain the chemical, physical, or biological integrity” of the waters of the United States, it is logical that headwater streams be regulated under the CWA (Federal Water Pollution Control Act, 2002).

The Clean Water Rule’s definition of “waters of the US” also includes wetlands and other water bodies that are hydrologically connected (adjacent) to traditional waters of the US, even if they appear isolated or separate. The rule defines waters that fit any of three criteria as “adjacent”: 1) waters within 100 feet of the of other waters of the US as defined by the CWR (navigable, interstate, territorial sea, or tributary); 2) waters within the 100-year floodplain of waters of the US; and 3) waters within 1500 feet of the “high tide line” of the Great Lakes (Clean Water Rule, 2015). Before diving into arguments about the hydrologic connectivity of wetlands, it’s important to establish a standard definition for “isolated wetland”. In scientific literature, “isolated wetlands” are generally wetlands that are completely surrounded by upland (higher elevation land) (Leibowitz & Nadeau, 2003). Isolated wetlands can account for a significant percentage of all wetlands in an area. For example, Leibowitz & Nadeau found that in the Rainwater Basin in Nebraska, 90% of wetlands are isolated; in the Sandhills (also Nebraska) 60% of wetlands are isolated. Together those two regions make up about half the state. All those Nebraska wetlands are uncovered by the Clean Water Act simply because they’re considered isolated. However, science shows that “isolated” wetlands are rarely truly isolated.

In its justification of the new Clean Water Rule, EPA references external research investigating the ecological importance of “isolated” wetlands, which explains why the wetlands, like small streams, shouldn’t actually be treated as isolated water sources. One comprehensive study shows how “isolated” wetlands are often connected to other wetlands and habitats by hydrology through groundwater and surface flooding, and by biology through animal movement and seed dispersal (Leibowitz, 2003). In unique hydrologic and biologic conditions, it is possible for a wetland to be truly isolated, but many “isolated” wetlands are conditionally connected to their surrounding watersheds. The EPA’s own syntheses of scientific papers on the subject, titled “Connectivity of Streams and Wetlands to Downstream Waters”, aggregates 1200+ other studies and comes to similar conclusions. The EPA found that wetlands outside of river floodplains have many functions affecting water quality downstream: isolated wetlands recharge groundwater which perpetuates base water flow in rivers, and isolated wetlands capture/process pollutants and nutrients that could otherwise continue flowing through the watershed (Alexander et al., 2015).

Another relevant paper looked at fens, a type of wetland fed by groundwater, and their lack of coverage under the Clean Water Act (Bedford & Godwin, 2003). The paper is a direct response to the Supreme Court ruling that said waters not adjacent to traditional navigable waters were not regulated under the Clean Water Act (Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 2001). The Bedford & Godwin paper immediately explains that fens qualify as “isolated” under the law but are clearly not isolated in reality due to their relationship with groundwater. Based on these studies, it’s clear that many wetlands are incorrectly defined as “isolated” because the function of groundwater—how it connects aboveground water bodies together—is so poorly understood outside the scientific community. Anyone can clearly see water flowing from streams into rivers into lakes and oceans, but underground movement of water is less obvious. Lawmakers’ failures to understand the interconnectedness of watersheds is plainly frustrating for Bedford & Godwin.

Arguments against the Clean Water Rule

Several organizations actively oppose the Waters of the United States rule. The National Federation of Independent Business, a large non-profit advocating for small businesses, sued the EPA and the Army Corps of Engineers, advocated for two bills that would have scrapped the rule, and testified to the Senate Small Business Committee (NFIB). The NFIB’s argument against the law is summarized in their lawsuit against the EPA, where they say members “will suffer real economic harm to their businesses and property value because they will be forced to submit to expensive, vague, burdensome, and time-consuming federal regulations” (Chamber of Commerce, et al. v. EPA, 2015). This position is understandable. The rule would regulate small water bodies that were previously free for small businesses to use as they please. “Real economic harm” is likely as businesses adjust to new regulations, but it’s hard to argue that responsible management of water is a bad thing for businesses and the US economy as a whole in the long term. Healthy freshwater ecosystems provide many valuable ecosystem services: they regulate atmospheric gases, moderate disturbances in the environment, regulate water flows, supply water for human use, treat waste by breaking down or removing water pollutants, produce food and raw materials, provide recreation options, and create aesthetic, spiritual, and educational value. Together all these services are estimated to be worth more than 10.5 trillion 2015 US dollars worldwide every year, which is over 14% of global GDP (Costanza et al., 1999; GDP, 2015). By regulating headwater streams and wetlands, ecosystem services provided by water bodies are improved for everyone downstream and the value of their services to the economy can grow.

Agriculture industry groups including the American Farm Bureau Federation (AFBF) also filed a lawsuit in opposition to the rule. One argument made by the AFBF is that the regulations are vague enough that farmers will have trouble determining what features on their property are now regulated under the CWA (American Farm Bureau Federation). This criticism is valid. The final rule occupies no less than 75 pages in the Federal Register, and the rule is difficult to understand even at a high level (Clean Water Rule, 2015). The executive summary is six pages long and includes language that I still had trouble parsing after studying the rule for a whole semester. There is no doubt that anyone impacted by this law, including farmers and small business owners, would struggle to determine whether the water bodies on their land would be federally regulated under the CWR.

In his remarks before signing the executive order putting the CWR under review, President Trump gave one specific example of how the CWR hurt an individual. He said the EPA fined Wyoming rancher Andy Johnson $37,000 daily because he dug a watering hole for his cattle on his own land. Senate Majority Leader Mitch McConnell and Senator Rand Paul cited the same example as an “outrageous assault” on Americans (McConnell & Paul, 2015). The story is true, but these men conveniently left out the crux of EPA’s justification for targeting Johnson: Johnson dammed up a perennial stream on his land using “dredged or fill material” (a pollution risk) to create the pond. The creek on Johnson’s property is a tributary to the Green River, an interstate water body that clearly falls under the traditional definition of “waters of the US” (Gaydosh, 2014). The law firm representing Johnson confirmed he built a dam, but didn’t address the pollution issue, choosing instead to argue that Johnson’s pond is a stock pond exempt from Clean Water Act regulation (Wood, 2015). That argument is supported by the fact that Johnson obtained a permit from the state of Wyoming for “stock watering purposes” (Application for permit to appropriate surface water, 2011). The EPA order did indeed threaten fines of “up to $37,500 per day” which is difficult to justify, even if Johnson’s dam was polluting downstream navigable waters (Gaydosh, 2014). The EPA settled with Johnson and didn’t actually charge him millions of dollars in accumulated fines; instead, the EPA ordered him to mitigate his stream modifications by planting willow trees to create a healthy riparian zone, which will protect the banks from erosion (Andy Johnson v. US EPA, 2016). Sanity prevailed in Johnson’s case, but it’s puzzling that Republican leaders like Trump and McConnell trumpet his case as an argument against the Clean Water Rule specifically. The CWR never went into effect; EPA pursued Johnson under longstanding Clean Water Act regulations because he dammed a tributary to a traditional “water of the US”. If the CWR had been law at the time, Johnson’s case would not have changed.

In their op-ed, McConnell and Paul also make a traditional conservative case against the CWR, arguing that increased regulation would discourage businesses from expanding and cost property owners $158-465 million as part of the federal permitting process (McConnell & Paul, 2015). Their concerns are valid, but the hassle and cost pales in comparison to the value of ecosystems services provided by streams and wetlands.

During the congressional battles over the CWR from 2013 to 2015, some Democrats joined Republican lawmakers in opposition to the rule. Democratic senators Heidi Heitkamp, Joe Manchin, and Joe Donnelly co-sponsored a 2015 bill offering alternative criteria to define “waters of the US” (Cama, 2015). Unlike the CWR, the Federal Water Quality Protection Act suggested that bodies of water that are not connected by continuous surface water to traditional waters of the US, but are connected by groundwater, should not be regulated under the CWA (2015). The act also included explicit exceptions for the specific situations cited as examples of CWR overreach. For example, it excluded any “farm pond, fish pond, quarry, mine pit, ornamental pond, swimming pool, construction pit, fire control pond, sediment pond, and any other isolated facility or system that holds water” (Federal Water Quality Protection Act, 2015). It also specified that “use of a body of water by an organism, including a migratory bird” cannot be used to argue a water body falls under CWA regulation, shutting down a strategy used by EPA and the Army Corps of Engineers to protect “isolated” bodies of water.

Conclusion

It’s easy to see why anyone who makes use of a small stream or small water body on their private land, like Wyoming rancher Andy Johnson, would be upset by expanded regulation under the CWR. How could the use of one little stream have significant impact on the whole watershed, much less all the “waters of the United States”? If just one small stream is modified, the overall impact will indeed be negligible. However, the cumulative effects throughout a whole watershed and across the nation can be significant. It’s a tragedy of the commons situation, where a person or business can benefit from abusing a water resource, but the abuses of all individuals combined are tragically detrimental to the resources they share (Hardin, 1968).

According to an article published in the Journal of the American Water Resources Association, headwater streams (the initial streams in a watershed that merge to form larger streams and rivers) account for more than half of the total stream length in our country (Alexander et al., 2017). Most of these streams would not qualify as “navigable waters”, but they are the threads from which America’s traditional navigable waters are woven. How can we expect our large bodies of water like the Mississippi river to stay clean if the headwater streams forming the Mississippi are polluted or diverted?

In a statement about President Trump’s executive order, Senator John Barrasso framed this debate as a states’ rights issue, expressing his desire “to clarify the distinction between state and federal waters” (EPW GOP, 2017). The desire for local control of local water resources is completely understandable, but watersheds do not respect state boundaries—or any political boundary for that matter. For example, water in Wyoming’s headwater streams enter the Missouri river basin and flows through seven other states before reaching the Mississippi river and flowing by six additional states. The water in one state’s non-navigable waters does not only affect the citizens of that state; it affects everyone downstream as well. A study published in the journal BioScience looked at how the Mississippi river basin changed over 200 years. It showed that land use practices upstream have a cumulative effect on water quality throughout the watershed (Turner & Rabalais, 2003). A 2001 study in the Journal of Environmental Quality found that the main sources of nitrogen pollution entering the Gulf of Mexico are states far upstream in the Mississippi river basin like Minnesota, Iowa, Illinois, Indiana, and Ohio (Goolsby et al., 2001). These widespread impacts are why non-navigable waters should be regulated at the national level, not just the state or local level.

That said, there is no doubt EPA has reached too far into the lives ordinary Americans at times, as in the case of Andy Johnson. Absurdities like his case were not intended by those who created the CWR. The text of the rule itself says “this rule does not add any additional permitting requirements on agriculture” (Clean Water Rule, 2015). Its stated intention is simply to “restore and maintain the chemical, physical, or biological integrity of traditional navigable waters, interstate waters, and the territorial seas” by expanding regulation to those waters feeding traditional waters of the US. In its specifics, the rule likely did overreach, as bipartisan criticism shows. The official summary of President Trump’s energy plan calls Obama’s CWR “harmful and unnecessary” while simultaneously claiming that “protecting clean air and clean water…will remain a high priority”(The White House, 2017). Maintaining the quality of our nation’s waters is an admirable goal, which is why the Clean Water Rule should be modified and improved, instead of being destroyed, as President Trump suggested.

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