Thursday, September 18, 2014

A Post-Mortem of the EPA's "New Clean Water Rule" and a Retort to Bob Marshall

A typical federally regulated "stream," as defined by the US EPA
This was specifically prohibited by SCOTUS, but is
still in use by US Army Corps and EPA staff.
Today, counter to the EPA's wishes for Congress to codify changes in the Clean Water Act's enabling legislation, the House, in a bipartisan move, passed HR 5078, the "Waters of the US Regulatory Overreach Protection Act of 2014."   The bill was drafted specifically to halt EPA's "New Rule for the Clean Water Act."

I could start this essay with a recap of Bob Marshall's recent diatribe in Field and Stream, "SINO, the Latest and Greatest Threat to American Sportsmen."  That article beautifully lays out Bob's  opinion that if you don't get behind the EPA, then you aren't a real sportsman.  But I won't start with that.

 Instead, I'll start by describing a set of peculiar emails that my coworkers and I, and thousands of other boots-on-the-ground conservationists started receiving in March, 2014.  They were from clean water activists who work with my employer, and they implored us to "help" the EPA gain important protections for wetlands and streams back under the federal regulatory umbrella of the Clean Water Act.  It's notable that six out of seven times the Clean Water Act (and EPA, its administrating agency) have been to the US Supreme Court, the EPA, and arguably cleaner water, have lost out.     EPA would like to recoup those jurisdictional losses, which in most cases I support.   Wetlands are important.  Soil is important.  Headwater protection is important.  I spend my days working on them, fixing them, patching them up.  How they are protected is what caught the ire of the Supreme Court...repeatedly.

EPA hasn't been deterred by these findings of mere mortal Supreme Court Justices, each time issuing EPA's own new guidance from their own legal counsel, in each case threading impossible logical (and ecological) needles, including this whopper that first (correctly) affirms that per SCOTUS and POTUS, the agency cannot regulate ditches, because they are non-navigable waters lacking seasonal flow.

 However, EPA  informed itself simultaneously that if water flows through the ditch, other than during a rain storm, that it's in fact a stream, and thus, may be protected under the Clean Water Act as a "non-navigable tributary that is not relatively permanent." That's a big name for a farm ditch!  Of course, this statement (and many others by EPA) is in broad and specific conflict with SCOTUS - a fact that doesn't seem to affect EPA's opinions on the matter.

So....back to 2014.  In March, we began receiving emails, the series of emails eventually containing EPA-created graphics on the proposed "New Rule," which would of course straighten all of this nonsense out, and make everything that ever moistens on earth's surface the jurisdiction of the federal government, and thus life would become shiny, new, and neat.   As reported by the Washington Post and gleefully advertised by EPA in their closed-circuit communiques with preservationist activists, "All ephemeral and intermittent streams, and the wetlands that are connected or next to them, will be subject to federal oversight under the New Rule."   Remember - the EPA considers most ditches in the United States to be  "ephemeral streams."  Ask a developer in Maryland or Pennsylvania.

 Better yet, ask an employee of Ducks Unlimited or Trout Unlimited, who has to beg for federal permission (a 2 - 12 year process costing in excess of $75,000 each time) to touch these ditches to conduct basic habitat restoration activities.   You'll find, especially you, Bob Marshall, that there's a sad truth in there.  The EPA staff, certainly at the Regional Office level, doesn't much care for habitat restoration.  My interpretation is that they'd rather that we just leave those tire dumps in wetlands, leave those fish passage blockages in place, and hope the migrating ducks find some food in the Walmart parking lot.  EPA staff regularly decry the fact that obtaining federal permits to restore aquatic habitat is "too easy," and in fact, have referred to restoration advocates - folks like Trout Unlimited and Ducks Unlimited - as "T.U.R.D.s" - "Totally Unsubstantiated Resource Developers."  (a similar tale holds that the "U" stands for "Undocumented").  It seems clear to me that the EPA staff equates habitat restoration with condo construction.   That we are developers.  Bob Marshall, if you think that EPA staff, as a whole, are overly concerned about restoring habitat or supporting sportsmen, you may want to reassess, my brother in T.U.R.D.dom.

So now we'll get to the fun part.  As soon as the EPA leadership and PR groups finished their press junket for the preservationists and water quality activists, describing how great and profound the changes to water quality and habitat would be "if only" the New Rule would be implemented, those same officials began a press offensive with the actual developers, as well as farmers. The EPA message was essentially, "Hey, just roll with it, this won't affect you.  No big deal.  It's just paperwork."  Here's a doozy from the EPA twitter feed:




Now, we have the EPA on record saying that any ephemeral stream would absolutely be regulated under the New Rule.  They've made that clear.  Their response would obviously be, "But not ditches!" And of course not - their over-regulation of ditches has landed them in federal court repeatedly (in almost all cases, ending with an EPA loss).  But does EPA really exempt ditches?

Here's a photo that's representative of a concrete ditch that was regulated by the EPA in Maryland in 2003 as a "stream," on the side of I-95.  It's strikingly similar to a ditch in Delaware, along a cloverleaf/exit ramp from I-95, that was regulated by the EPA in 2004 as a "federal wetland" because there were wetland plants growing in sediment on top of a small section of the concrete.  Both ditches were thousands of feet from another federal resource (stream), which itself places the sites in violation of the key SCOTUS rulings.  In both cases, the state highway agency had to pay tens of thousands of dollars to offset or "mitigate" the damage to those poor, sensitive concrete ditches that resulted from paving over the existing concrete.  I was the permit writer for both projects.  EPA is promising the conservation community that under the New Rule, this "natural resource" will always be regulated as a stream.  Meanwhile, EPA tells the development and farming communities that this "ditch" will never be regulated as a stream.  Both of those things can't be true simultaneously. That means either conservationists or developers are being sold a bad bill of goods by the EPA.

In fact, as the Post reports in the article linked above, the EPA proposes not to regulate farming activity "which does not discharge a pollutant."   For those of you who have been on a farm and seen manure piles and pesticide being sprayed, I don't have to tell you what it means for those ditches that are receiving those chemicals.  And I'll out myself here - I don't oppose regulating that at all.  We should be regulating farm runoff. But I do oppose dishonesty and lack of transparency.  How can  you tell conservationists that these areas will be "protected" while telling farmers the same areas will be "exempted?"


When I received a tweet with this image (right) from the EPA in August, I was intrigued.  I have stood on proposed stream restoration sites where EPA staff claimed that a permit would not be granted because of impacts to the upland floodplain.  The EPA's Water Resource Registry will spit out information on a parcel of land saying that having trees in an existing floodplain is a solid basis for not conducting stream restoration.  So I responded to the tweet, "EPA is currently regulating floodplains that do not contain wetlands, and advising applicants to avoid floodplain impacts."  The tweet was deleted by EPA staff.  I retweeted the same comment.  Again, it was deleted.   Why doesn't the EPA want anyone to see that comment, I wonder?  I heard from other Twitter users that their similar comments were deleted by the EPA as well.  Interesting.

I support strict headwaters protection.  I support strong restoration efforts.  I support strong, well funded preservation efforts where native pre-1607 resources are still highly intact.   I understand that these things come at an expense and potential infringement to landowners, farmers, and taxpayers, and I think the benefits of such strong actions override the short term costs.   For that, I've been called many nasty things, including Communist.   But it has to be legal.  It has to make sense.  I can speak with nearly 20 years experience working in federal waters that the proposed "New Rule" (RIP) is likely neither legal or sensible.   How can a law "protect vast unprotected resources" while "allowing all current exemptions?"

The Clean Water Act, notably the portion dealing with nonpoint source pollution, isn't working.  It over-regulates resources that are not even natural resources, and under-regulates resources that matter.  I'm sure folks like Bob Marshall know this already, but the EPA and Corps of Engineers approve over 99% of completed applications to fill or drain federal waterways and wetlands.   The New Rule won't change that.  And I'm sure it's common knowledge that in 25 years of "No Net Loss" federal policy, the EPA has yet to achieve one single year of "no net loss."   The New Rule won't change that either (it would add acres to both the "existing" and the "lost" column).  It's simply not working.   

And that's why I can't support the EPA's New Rule.  Even if Bob Marshall thinks I'm a Sportsman in Name Only. 




1 comment:

Anonymous said...

Well said.

Bob Marshall needs to practice reading all the words in regulatory documents before he comments broadly on them.