William Andreen on CPRBlog {Bio}

“Waters of the United States” - Myths and Facts Surrounding the New Proposed Rule from EPA and the Army Corps of Engineers

On April 21, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published a proposed rulemaking to clarify the jurisdictional reach of the protections afforded by the Clean Water Act of 1972.  The Clean Water Act is the foundation of our nation’s effort to restore and maintain the biological, chemical, and physical integrity of our water resources.  While the jurisdictional reach of the Act was well defined and well understood for nearly forty years, two Supreme Court cases in the early 2000s (SWANCC v. U.S. Army Corps of Engineers and Rapanos v. United States) created confusion and added complexity to the determination of which streams and which wetlands were subject to Clean Water Act protection.  The proposed rulemaking responds to the need, articulated by the regulated community and others, to provide clarity amidst the uncertainty generated by the cases.  It also provides clear protection to our nation’s waters and wetlands, including many headwaters, adjacent wetlands, and seasonal streams the protection of which was thrown into some degree of confusion by the cases. 

The proposal is consistent with the Supreme Court’s reading of jurisdiction under the Clean Water Act.  It is based on sound science and is carefully crafted to further the intent of Congress in enacting the Clean Water Act as interpreted by the Supreme Court.  In fact, it does not expand upon the scope of the waters that have historically been protected under the Clean Water Act.

The agencies propose to define waters of the United States to mean: all waters that were, are, or may be susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide; all interstate waters, including interstate wetlands; the territorial seas; and impoundments of waters otherwise defined as waters of the United States.  It also includes all tributaries to traditional navigable waters, interstate waters, the territorial seas, or impoundments of waters otherwise defined as waters of the United States, and all waters, including wetlands, which are adjacent to traditionally navigable waters, interstate waters, the territorial seas, and tributaries and impoundments as defined above.  Finally, it includes, on a case-by-case basis, other waters, including wetlands, which have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas. 

A number of waters are specifically excluded from the definition.  No changes, for example, are proposed for prior converted cropland or for waste treatment systems that are designed to meet the requirements of the Act, neither of which have ever been included in the definition.  In addition, the agencies are proposing to exclude by regulation many waters and features over which the agencies as a matter of policy have not asserted jurisdiction.  These waters and features include: artificially irrigated areas that would revert to upland if irrigation ceased; water-filled depressions created incidental to construction activity; gullies and rills and non-wetland swales; groundwater; and ditches that do not contribute flow to a traditional navigable water, interstate water, the territorial seas, or impoundment. 

Furthermore, the proposal does not affect the provisions in the Clean Water Act that exclude agricultural stormwater discharges and return flows from irrigated agriculture from regulation as point sources of water pollution. 

Despite the fact that the proposal is consistent with the nation’s historic approach to the control of water pollution, a number of special interests have denounced it, spreading misinformation and contending that the proposal is unprecedented in terms of its scope.

In an effort to dispel some of these misconceptions, listed below are a number of myths and corresponding facts concerning the proposal to refine and clarify the definition of waters of the United States. 

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The Clean Water Act at 40: Finishing a Task Well Begun

This post is first in a series marking the 40th anniversary of the Clean Water Act.

On October 18th, the nation will celebrate the 40th anniversary of the Clean Water Act.  This landmark piece of legislation has proven remarkably successful.  Water pollution discharges from both industry and municipal sewer systems have declined sharply, the loss of wetlands has been cut decisively, and water quality has broadly improved across the country.  The Clean Water Act is, in short, a real success story.  It stands as a tribute to the foresight of those in Congress who passed it, as well as to the men and women in both state and federal regulatory agencies who have worked so hard, and for so long, to restore the integrity of our nation’s waters.

The Act, however, is showing its age.  Twenty-five years have passed since it was last amended in comprehensive fashion, and more than a little fine-tuning is necessary to finish the task that began in 1972.  The most significant problem involves nonpoint source pollution—the indirect discharge of polluted runoff from fields and roads, clear cuts, and parking lots.  The Act never addressed nonpoint source pollution in a straightforward way.  Instead, it was treated as something of an afterthought left primarily in the hands of state and local government, and they have primarily relied upon voluntary management practices to control polluted runoff.  As a result, nonpoint source pollution has evolved into the largest single source of water quality impairment in the country.  These diffuse sources of water pollution are, furthermore, much more diverse than we once thought.  In addition to obvious sources such as polluted runoff from agriculture, urban areas, logging operations, and mines, nonpoint source pollution also includes cross-media transfers, including the deposition of air pollutants such as mercury and nitrogen, into our waters.

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EPA and the Corps of Engineers Deserve Praise for Their Draft Guidance on the Jurisdictional Scope of the Clean Water Act

During the past decade, the U.S. Supreme Court handed down two decisions that greatly reduced the extent of waters protected by the Clean Water Act (CWA). These cases upset the clearly articulated regulatory definition of “waters of the United States” that had been consistently applied and widely accepted as valid for many years.   Not only did the decisions threaten millions of acres of wetlands and thousands of headwaters with destruction and unregulated pollutant discharges, but the most significant of the two was issued by a badly fractured Court, producing a great deal of confusion over which waters are regulated and which ones are not.  

In the SWANCC case (2001), the Supreme Court held that CWA jurisdiction could not be based on the presence of migratory birds at isolated, non-navigable, intrastate ponds.  In the second case, Rapanos (2006), the Court addressed the CWA’s application to wetlands located adjacent to non-navigable tributaries. Five separate opinions were issued, none of which received majority support. The plurality opinion, written by Justice Scalia, stated that the concept of navigability was still important in defining and limiting the scope of jurisdictional waters under the CWA and that waters refers to “flowing or moving masses.” Therefore, the plurality declared that the CWA can, in some instances, apply to more than traditionally navigable waters and their adjacent wetlands. Jurisdiction, as a result, also extends to “relatively permanent” streams and lakes and their adjacent wetlands as long as the wetland has a “continuous surface connection” to the stream or lake.  

Justice Kennedy concurred using different reasoning. He stated that “waters of the United States” included wetlands that have a “significant nexus” to navigable waters. Such a nexus would exist if the wetland, viewed alone or in combination with “similarly situated” waters in the region, significantly affects the chemical, physical or biological integrity of a navigable water.  The four dissenting justices would have upheld the existing regulatory definition and, furthermore, indicated that they would uphold future assertions of jurisdiction under either the plurality approach or Justice Kennedy’s concurrence.

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Update: EPA Releases Full FY 2010 Stats on CWA Convictions

Since my post last week ("Convictions for Violations of the Clean Water Act Continue to Ebb"), a number of significant things have occurred. On October 20, the EPA’s Assistant Administrator for Enforcement and Compliance Assurance, Cynthia Giles, announced that the Director of the Office of Criminal Enforcement, Forensics and Training was retiring and that the Director of the Criminal Investigation Division had decided to pursue new challenges within the agency. In addition to this personnel shake-up, Assistant Administrator Giles has pledged to hire 40 more criminal investigators at EPA. The number of investigators had fallen from 205 in 2003 to approximately 160. The agency appears, therefore, to be committed to reinvigorating what seems to have been, at least until recently, a lagging criminal enforcement effort. 

In response to a reporter’s inquiry prompted by my post, EPA disputed TRAC Reports' projection of convictions that would be obtained for violations of the Clean Water Act during fiscal year 2010. EPA provided statistics on the total number of CWA convictions since 1990. Instead of 28 CWA convictions (as projected by TRAC Reports), the statistics provided by EPA indicate that 32 convictions were actually obtained in FY 2010 (Greenwire, via NYTimes.com). Although the total number of convictions was somewhat higher than those originally projected by TRAC Reports, the trend remains a matter of concern. The total of 32 convictions is the lowest, according to these EPA figures, since FY 1994 and is approximately 50 percent lower than the number in FY 2000 and nearly 25 percent lower than in FY 2009, when 42 convictions were obtained. 

On the other hand, the agency statistics indicate that total convictions under all of the environmental statutes increased by about 10 percent in FY 2010 over FY 2009 levels, a year in which the downward trend of the first decade of the new century reached its nadir (140 total convictions).  This rise in convictions may well reflect the fact that the total number of criminal cases opened in FY 2009 and total number of defendants charged had increased from the depths reached in FY 2008.    

One would hope that, with new leadership and added resources, the criminal enforcement program at EPA will continue to rebound and that renewed emphasis will be placed upon Clean Water Act enforcement. One would also hope that EPA will undertake in the future to publish more detailed, timely, and comprehensive statistics on enforcement trends, including comprehensive figures on state criminal, civil and administrative enforcement as well as civil actions filed under the various citizen suit provisions.

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Convictions for Violations of the Clean Water Act Continue to Ebb

According to the latest data published by TRAC Reports, the number of federal convictions obtained for violations of the Clean Water Act during fiscal year 2010 has continued to follow a recent downward trajectory. Since reaching a high of nearly 70 in FY 1998, the number of convictions has continued to decline toward what may be its lowest level since the early 1990s. During the first ten months of FY 2010, the Department of Justice reported 23 convictions, a pace that would produce 28 convictions for the entire fiscal year—a decline of  60 percent since FY 1998.

This is a disturbing trend since vigorous enforcement activity is a critical component of any credible environmental protection program. Convictions alone, however, do not necessarily reveal how effective a criminal enforcement program may be. A strategic decision to pursue tougher, higher quality cases rather than run-of-the-mill cases would likely produce fewer convictions in any given year. However, a quick look at some other key statistics reveals that criminal enforcement of the Clean Water Act has been trending downhill since the 1990s. The number of cases opened, defendants charged, and sentences obtained have all been falling as a general rule since 1998. In FY 1998, 636 cases were opened, 350 defendants were charged, and 173 years of prison time were obtained. Compare that with 319 cases opened, 176 defendants charged, and 57 years of prison time obtained in FY 2008. This drop in criminal enforcement activity was mirrored by a 27 percent cumulative cut in EPA’s overall budget during the eight years of the Bush administration.

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One More Point on the N.Y. Times Water Article -- the Problem of Nonpoint Source Pollution

Sunday’s New York Times article about the neglect of our clean water laws included a shocking example of how a regulatory gap in the Clean Water Act can harm public health. For example, the article referred to water supplies in parts of the Farm Belt that are contaminated by dangerous levels of pesticides, which originate with agricultural runoff and cannot be corrected by enforcement of the Clean Water Act. Although the Act provides a comprehensive regulatory program for point source discharges of pollution — discharges from pipes and other discernible conveyances — it does not directly regulate generalized runoff from farms, forestry activities, overflowing septic tanks, parking lots, and mining operations, something that is generally referred to as nonpoint source water pollution. As a result, nonpoint source pollution, especially from agriculture, has become the chief impediment to achieving national water quality objectives. Water pollution from nonpoint sources dwarfs all other sources by volume and often adds dangerous pesticides, other toxics, and fecal contaminants to our waters.

The Clean Water Act today requires that the states identify those rivers and other waters that are unable to meet water quality standards because of nonpoint source pollution. The states are then directed to develop Best Management Plans (BMPs) to address these nonpoint source problems. This program, unfortunately, has not worked well. One major weakness is that many states have adopted non-regulatory approaches, including voluntary BMPs, to deal with the problem. These voluntary programs have not produced significant progress, and the CWA gives EPA only limited power to deal with such ineffective approaches. EPA can only approve or disapprove of an inadequate state plan; it cannot promulgate a federal plan in lieu of an inadequate state plan. Thus, EPA has been placed in an unenviable position. It can disapprove a state plan and thus withhold the funding that a state needs to make at least some progress in the area, or it can approve an inadequate plan. The result has been predictable.

Congress, therefore, needs to revisit the problem of nonpoint source pollution. States need to review their waters on a regular schedule in order to update the list of those which are impaired due to nonpoint source discharges. The Best Management Plans required by the Act must require enforceable conditions and requirements. If a state fails to include such conditions and requirements, EPA must be empowered to promulgate a federal BMP for the state. Only in this way can EPA ensure that effective nonpoint source controls are established. Finally, Congress must stipulate that the states establish credible enforcement programs for their nonpoint sources and give EPA the authority and resources to backstop these enforcement efforts. It is time to complete the work that Congress undertook in 1972 when the original Act was passed. It is time to fill the gap that has stood as one of the primary impediments to achieving the nation’s dream of actually having fishable and swimmable streams.

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N.Y. Times Article on Water Pollution: A Timely Reminder of the Role of Enforcement

Sunday’s New York Times article about the neglect of our clean water laws came as a timely reminder that, no matter how well articulated our environmental laws may be, it takes consistent, vigorous enforcement to ensure compliance with these statutory regimes. Unfortunately, as the article illustrates, state and federal enforcement of the Clean Water Act has languished during the past decade. Not only have governmental resources been inadequate, but all too often the will to enforce the law has been absent. Although water pollution violations often pose grave hazards to public health, the political climate in many state capitals seems to have favored polluters, even those who repeatedly violate the law, and the U.S. EPA appears to have been unwilling, at least up until the current administration perhaps, to force these recalcitrant states to perform their duties under the Clean Water Act.

While the article is sure to draw attention to this recent enforcement hiatus, the lapse of the past decade is not an aberration. The first enforcement lapse occurred during the early years of the Reagan administration when state and federal enforcement of the Clean Water Act fell dramatically. This pattern was repeated after the mid-term elections in 1994 when both state and federal enforcement efforts slipped badly yet again.

These periodic enforcement breakdowns produce confusion in the regulated community, encourage non-compliance, and subject our environmental agencies to ridicule. Such lapses also breach an implied social contract with those regulated entities who, relying upon responsible law enforcement, have invested substantial amounts of time and money to comply with the law. More importantly, however, the lack of effective enforcement breaks faith with the public that depends upon these agencies to provide clean and healthy water.

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