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Inside the Battle Over the Clean Water Rule
By: Julie Grant | The Allegheny Front
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It’s an Obama-era regulation with a simple name and seemingly straight-forward purpose. But since its authoring, the Waters of the U.S. Rule — also known as the Clean Water Rule — has been embroiled in controversy. Don’t expect that to change under the Trump administration.
Matt Durbin grows 2,400 acres of corn, soy and wheat throughout the Muskingum Valley in eastern Ohio. And it floods a lot.
“It just happens that where our home farm is located is the convergence of five Muskingum watershed lakes and and two additional dams that are on the river,” Durbin says. “We get all that water together right here at our farm.”
To show me, we drive his pickup truck over an old earthen levee next to the fast-moving Tuscarawas River. Parts of the adjoining wheat field are covered with water.
“When there’s high water someplace, we have it too. So we’re dealing with a lot of water usually.”
Durbin tells me he worries that this flooding could make him subject to more federal oversight due to something called the Waters of the U.S. Rule, also known as the Clean Water Rule. It’s a 2015 update of the Clean Water Act and defines which lakes, streams and wetlands fall under the jurisdiction of agencies like the Environmental Protection Agency or Army Corps of Engineers.
“We’re within 4,000 feet of this river, and the river at high level runs across this ground. So according to my reading of the rules, that means they have control over this land. So how long is it before they tell me, ‘Ok, you can’t do anything with this land. This is floodway land. You can’t spray chemicals; you can’t farm it’? And then do I own a huge amount of acreage that isn’t worth anything?”
Gina McCarthy, the former EPA administrator who steered creation of the Clean Water Rule under the Obama administration, says it has been widely misunderstood by farmers and others. This is why she calls it “one of the more frustrating rules.”
“It’s basically a rule that simply says if you’re going to destroy a river or stream, make sure that it will not have an impact on downstream rivers and streams that are necessary for drinking water,” she recently told the radio show On Point.
McCarthy says the EPA wrote the rule in response to Supreme Court decisions in 2001 and 2006. These rulings actually made it unclear which water bodies are protected by the Clean Water Act and which are not.
In the 2006 case, Rapanos v. United States, the justices couldn’t agree on a single standard for the federal government to follow. Justice Scalia said only relatively permanent, standing or continuously flowing bodies of water such as streams, rivers and lakes should be federally protected. Justice Kennedy notably said bodies of water with what he called a “significant nexus” to traditionally protected streams, rivers and lakes should also be protected. And Justice Breyer called on the EPA to “speedily” write new regulations.
McCarthy says the EPA listened.
“They said EPA needs to get more science behind it,” McCarthy told On Point. “We went out and we looked at 1,500 peer-reviewed studies. We started out a science advisory peer-review panel that said, ‘Ok, how do we get more robust in the science?’ They did a report for us.”
And that report led to the new rule. The agency also addressed more than a million public comments before releasing the final Clean Water Rule in 2015. But after all that effort, it was never actually implemented. More than 30 states sued the EPA to stop it, and the courts issued a stay last year until the legal issues are settled.
McCarthy told OnPoint that opponents aren’t looking at what the rule will actually do. For example, for farms, the new regulations are less restrictive.
“We actually expanded exemptions for agriculture,” McCarthy said. “And still, on the basis of gut instinct, everybody decided that it was worse than it ever was before. The fact that we clarified it, and were actually going to do it right, now became a threat.”
Among those opposing the rule were energy companies, like Halliburton and Shell; food and beverage giants, including Land O’Lakes, and Ocean Spray; the American Farm Bureau; golf course owners like President Trump; and closer to home, builders like Daniel Durden.
Durden is the Chief Executive Officer for the Pennsylvania Builders Association, and he sees the rule as an overreach by the government. He says that in clarifying what’s regulated, EPA took authority over nearly every body of water, even intermittent and ephemeral streams.
“Ephemeral might mean the very fleeting waters in a gully following a heavy rain,” he says. “So we’re talking about areas that were never thought to be regulated by the Clean Water Act in the past. Suddenly, that low-lying area on your farm, or that naturally occurring ditch on the edge of your development, may be regulated under the Clean Water Act.”
Former EPA Chief Gina McCarthy says the rule focuses on streams — not gullies and ditches, as critics suggest — and expanded the reach of the Clean Water Act by only about three percent.
“We actually expanded exemptions for agriculture,” McCarthy said. “And still, on the basis of gut instinct, everybody decided that it was worse than it ever was before. The fact that we clarified it, and were actually going to do it right, now became a threat.”
National environmental and fishing groups largely supported the rule. Myron Arnowitt, director of the Pennsylvania chapter of Clean Water Action, says the rule would provide important new protections to many streams in the state.
“Over half of stream miles in Pennsylvania are protected by the Clean Water Rule that weren’t previously covered,” Arnowitt says. “That’s really important to preserving our water quality health in Pennsylvania.”
But President Trump’s pick to head the EPA has promised to withdraw the rule. In fact, as Oklahoma Attorney General, Scott Pruitt actually sued EPA over it.
But scrapping the rule might not be easy. “The new administration could not just preemptively rescind the rule, without any basis to do so,” says Larry Liebesman, a former Justice Department attorney who focuses on the Clean Water Act. “They’d have to have a reason or rationale for doing that.”
Trump’s EPA would have to contend with a 300-page legal and scientific defense of the Clean Water Rule that was submitted to the Supreme Court during the last week of Obama’s presidency. The high court is currently deciding which lower court should hear the case.
While that legal battle plays out, House Republicans are doing what they can to undercut the rule — passing a bill last year that prohibits the use of any funds to enforce it.
The Allegheny Front is produced in Pittsburgh and reports on the environment. More at alleghenyfront.org.