Obama's Path to Progress: Protecting America's Wetlands and Other Fragile Water Resources

Over the next two weeks, CPR will publish a series of blog posts highlighting several key regulatory safeguards for protecting the integrity and health of U.S. water bodies against damaging pollution—rules that are currently under development by the Environmental Protection Agency (EPA) and included in our recent Issue Alert, Barack Obama’s Path to Progress in 2015-16: Thirteen Essential Regulatory Actions.  Today’s post will examine the clean water safeguard that has attracted perhaps the most vociferous opposition from industrial and agricultural polluters along with their antiregulatory allies in Congress: the EPA’s pending rule to clarify the definition of “Waters of the United States” under the Clean Water Act, which seeks to ensure that certain classes of critical water bodies—many of which are smaller and often overlooked—receive the statute’s full protections.

Given all the histrionics and overblown exaggerations from industry, it’s easy to lose sight of what is really at issue with the EPA’s “Waters of the United States” rule.  Generally speaking, there are classes of waters that are clearly covered by the Clean Water Act—rivers, lakes, and streams that support a variety of uses, including drinking water, commerce, wildlife habitat, and more—and then there are classes of water that are clearly not covered because they are so remote and isolated that they are essentially disconnected from other bodies of water that are covered by the statute (for this latter category of waters, states retain primary responsibility for their protection).  In between, though, there are several classes of waters that do not, at first blush, fit into either category, including many wetlands areas and various other smaller but environmentally critical bodies of waters.  These wetlands and water bodies are located adjacent to the clearly jurisdictional waters or otherwise maintain some degree of connectedness to those waters—but the question is whether they are close enough or connected enough to warrant the strong federal protections offered under the Clean Water Act.  In many cases the decision of whether Clean Water Act protections apply must be made on a case-by-case basis.  Most of the disagreements over the EPA’s pending rule, of course, center on how it deals with these “intermediate” waters.

The intermediate waters present a significant challenge for the EPA, since case-by-case determinations can be expensive and time-consuming to make with the end result that many waters that objectively fall within the scope of the Clean Water Act’s protections do not end up receiving them.  Large industrial farms and other polluting businesses are able to harm these waters without fear of any enforcement actions.  Not surprisingly, industry prefers for there to be as much—gasp!—regulatory uncertainty as possible in this area.  The more uncertainty, the less enforcement.  The less enforcement, the greater the profits for affected industries.

In an ideal word, the EPA would like to reduce the number of “intermediate” waters as much as possible, and it can do this by distinguishing to the greatest extent possible those classes of water bodies that are or are not covered on categorical basis.  Industry, for its part, would prefer that the number of “intermediate” waters remains large enough to continue paralyzing the agency’s enforcement efforts.

As science has progressed in recent years, the task of categorically sorting out which classes of water are or are not covered has improved dramatically.  It also has revealed that the significance of some water bodies have previously been misunderstood or underappreciated, confirming that these waters must be protected in order to realize the goals of the Clean Water Act.

Over the decades, the EPA has gradually developed a better understanding of where the scope of the Clean Water Act lies.  But these efforts have been muddled recently by a series of U.S. Supreme Court decisions that have spawned widespread confusion over the manner in which the EPA is supposed to resolve the “close calls” for which waters should be covered.  The predictable result is that the EPA’s efforts to enforce violations of the Clean Water Act have been severely hamstrung.  A 2007 congressional memorandum describes the situation thusly:   “Hundreds of violations have not been pursued with enforcement actions and dozens of existing enforcement cases have become informal responses, have had civil penalties reduced, and have experienced significant delays.”

 It just so happens that these inadequately protected water bodies are among the most important for humans and the environment.  They include many kinds of wetlands, which are crucial for controlling flooding, filtering pollutants from water, and serving as important habitat and breeding grounds for aquatic species.  More than one-third of U.S. endangered or threatened species live exclusively in wetlands, and nearly half of all such species inhabit or use wetlands at some point in their lives.  Fish and shellfish that inhabit or use U.S. wetlands make up 75 percent of the country’s total commercial seafood harvest and have an estimated annual value of $15 billion.

Despite their importance, U.S. wetlands have seen rapid destruction and decline for decades, if not centuries.  The United States lost a total of more than 62,000 acres of coastal wetlands between 2004 and 2009.  The state of Louisiana alone loses an area of wetland the size of a football field every hour.  In total, the lower 48 states have lost roughly half of the 220 million acres of wetlands estimated to have been in existence in the 1600s, before the introduction of modern industry and agriculture.

Other negatively impacted water bodies include streams, tributaries, and several types of critical “isolated” waters, such as prairie potholes, Carolina and Delmarva Bays, and western vernal pools.  Similar to wetlands, these water bodies supply unique habitat to a variety of animals and plants—including endangered species and economically valuable migratory birds—and they are essential to maintaining the health of the larger rivers and lakes to which they are connected.  In particular, these water bodies serve as important conduits of nutrient non-point source pollution that now is among the leading threats to water quality in these larger rivers and lakes.

To address the ongoing confusion that is undermining protections for these waters, the EPA and the U.S. Army Corps of Engineers, which helps implement the Clean Water Act, jointly launched the “Waters of the United States” rulemaking.  As explained above, the overarching goal of this rulemaking is to clarify which types of water bodies automatically are covered by the Clean Water Act (and which are automatically not covered), which will significantly reduce the universe of water bodies that will require costly case-by-case determinations.  As proposed, the rule would clarify that the Clean Water Act’s protections extend to all tributaries of rivers and lakes already covered by the statute.  It would also provide automatic protections for all streams, ponds, and wetlands found in floodplains or riparian corridors.

As noted, the agencies’ “Waters of United States” rulemaking is one of the “essential 13” regulatory actions highlighted in CPR’s recent Issue Alert on safeguards that the Obama Administration should commit to completing during its remaining time in office.  As this rulemaking illustrates, the completion of these rules will deliver significant benefits for the American public and the environment on which they depend.

This rulemaking has already experienced significant delays, including excessively long review of the draft proposal by the White House Office of Information and Regulatory Affairs (OIRA), as well as an unusually long public comment period, which ended just a few weeks ago.  Industry opponents and anti-regulatory Members of Congress will no doubt seek to promote further delays in the coming months.  In particular, they will seek to discourage the Obama Administration from completing the rulemaking by resorting to such tactics as appropriations riders aimed at defunding agency efforts to develop the rulemaking and circus-like congressional hearings, which will provide a high profile venue for the continued spread of misinformation about the rule’s effects.

The Obama Administration should resist these efforts, however, and work as expeditiously as possible to complete this rule.  In the Administration’s recent regulatory agenda, the EPA confirmed that it expects to issue a final “Waters of the United States” rule by April 2015.  By sticking to this timeline, the agency will be able to begin better enforcing the Clean Water Act’s protections for wetlands and more isolated water bodies.