Monday, October 20, 2014

Rapanos' Legacy and the proposed New Rule for Waters of the US.

This pile of human sewage leads to a farm ditch.  Behind the barn is a pile of
chicken manure, also draining to the nearby ditch.  EPA's New Rule exempts
this obvious water pollution from federal regulation.
I guess that's "science based."
On December 2, 2008, the EPA issued a memorandum after getting kicked in the teeth by the US Supreme Court in the Rapanos v. United States decision.  Some background:  in the case, John Rapanos, a decidedly "bad human being," had filled 22 acres of isolated Michigan wetlands that were connected by systems of ditches, pipes, and gullies to a navigable stream over 20 miles away.   Rapanos should have been imprisoned by the state of Michigan for this wetland filling, but he was not.   That left the US EPA to step in, federally prosecuting and fining John Rapanos to the tune of millions of dollars.  It would seem that Rapanos is a bristly curmudgeon, and as such, he had his attorneys push the issue all the way to the US Supreme Court, where he emerged victorious - a major loss, in precedent, for environmental protection.

Coal fill in mountain streams, allowed without mitigation
by US EPA until 2010.  Now still allowed,
with stream mitigation. Would still be allowed
under the New Rule.  Very scientific.

You see, the Clean Water Act, the law which required the US EPA to clean up all of this nation's waters by 1984 at the very latest,  focused on two major issues:  1) regulating point source pollutants (usually pipes) to interstate bodies of waters or watersheds, and 2) regulating nonpoint source pollutants, including fill dirt, that enter wetlands or navigable waterways that hydrologically lead to interstate bodies of water.   The US EPA has been fairly successful at regulating, though not eliminating, point source pollution, such as sewage discharges, factory outfalls, and power plant effluents.  However, nonpoint source pollution has remained largely unregulated.  Of its four main sources:  filling in wetlands/waters, nonpoint stormwater discharge, nonpoint septic discharge, and nonpoint farm runoff, only one (filling in wetlands/waters) is consistently regulated across the country, and many projects fall below mitigation thresholds - lost forever because engineers adjusted a wetland impact to be 43,559 square feet (no mitigation) instead of 43,560 (mitigation required); or changed stream impacts to be 1,499.5 linear feet (no mitigation) instead of 1,500 linear feet (mitigation required).  So much for science-based environmental protection.

If this neighborhood ditch stays wet for more than three weeks
of the growing season, US EPA currently regulates
it as an "intermittent stream."  The New Rule would also
regulate this ditch.  Science based?
So, back to the New Rule for Waters of the US, largely designed to offset the losses in (interpreted) federal jurisdiction that occurred  as a result of the repeated SCOTUS trouncings that EPA has received.   The EPA promises to conservative lawmakers that the gains in water quality protection are simply "clarifications" and "will not be significant."  Yet, communications released to water quality advocates promise that "2/3 of the nation's waterways are currently federally unprotected" - implying that this would be resolved by the New Rule.  Now, I'm no mathematician, but in what world is a 300% increase in watershed protection "not significant?"  Whether I'm a trout fisherman, a condo developer, an anti-development activist, or a stream restoration practitioner, that sure sounds significant to me.  

Second, the EPA promises that the New Rule, in its final language, will be "science based."   Meanwhile, they promise that current exemptions for pollutant-laden farm ditches, the single largest source of nonpoint water pollution in this nation, "will remain in place."   In what world can a law be passed to continue to exempt the country's largest single source of water pollution, while being "science based?" EPA's position on this is acutely anti-scientific - and they need to admit that. 

Looks like a roadside ditch next to a gas station, right?
Nope!  The cattails provide sufficient indicators for vegetation,
soil, and hydrology indicative of a "federal wetland" per
the 1987 Corps of Engineers Wetland Manual.
This definition would continue under the New Rule. 
Third, and most notably, the primary issue with the New Rule is the same issue that caused the escalation of Rapanos, of Carabel, of SWANCC, of Sackett (unanimous SCOTUS finding against EPA), and soon, of Foster v. United States (currently in US District Court).  That issue is that the US EPA is the agency in charge.  In forty years, the agency has argued for their interpretation of provisions of the Clean Water Act nine times to the Supreme Court.  They have lost seven of those nine cases.   In each loss, precedent-setting, nationwide losses in clean water protections resulted, which could have been avoided by negotiating settlements with the permittees.   But EPA isn't big on negotiating with their customers.   Well, sort of, I mean, let's not forget the 20 years of mountaintop removal they allowed with 2-page permits (ending in 2010), or the ongoing exemption of farm runoff into streams, or their "canceling" of their research project on the impact of hydraulic fracturing on groundwater and surface water resources.   Those things all happened, and they keep happening.

If you still believe EPA's tome that Rapanos and Carabel were legal "flukes" that certainly won't arise again, and you're not interested in following Foster v. United States (S WV Dist 2:14-cv-16744), just read page 12 of the EPA's memo on Rapanos.  It asserts that even though ditches aren't jurisdictional through Section 404 of the Clean Water Act, EPA employees should investigate whether the ditches, often concrete, alongside a highway, should be regulated under other sections of the Clean Water Act, namely sections 311 (haz mat liability) and 402 (stormwater).   What?

If you were a federal judge, and saw the EPA attempt that maneuver in a legal brief, how do you think you'd react? 

The New Rule for the Waters of the US, which President Obama has vowed to sign in its current language and to which he has publicly stated that he will reject modifications or edits, makes good EPA-mandated actions like stream restoration harder, and EPA-permitted real estate development in wetlands no harder at all. It's simply an accounting exercise, as it's been for decades. The EPA will still approve 99% of completed permits that arrive on their desk, despite the larger amount of wetland and stream impacts under the New Rule.  The mitigation ratios will continue to not provide sufficient offsets, and "No Net Loss," will continue to be an unfulfilled dream.  And of course, what we'll all be waiting for is the inevitable federal trial that will likely gut the New Rule as unconstitutional within eight  years of its enactment.  What other parts of the Clean Water Act will be deemed "unconstitutional" in that majority decision?  I don't want to find out.

 EPA's losses at the Supreme Court are our losses, and Presidential Rules won't protect EPA from itself on that front.  If we want to ever enjoy clean water again in this country, let's not blindly give EPA more non-scientific, non-legally based authority that will inevitably be used to gut another section of the Clean Water Act when EPA attorneys aggressively appeal each of their cases to the Supreme Court.  It's a bad, bad business plan.   


Anonymous said...

Excellent and objective observations. I wish the President could read such independent detective work on these important environmental/business issues. Perhaps you could send the narrative to him.

Kirk River Mud said...

I tried to engage with some of the well-intentioned lobbyists working on this, and their response was, "Oh OK. Submit your comments to"

I will submit formal comments and also will post them on this site, also.

There doesn't seem to be much interest by either side in discussing the nuances and importance of these changes. It appears to be very well meaning, poorly crafted rulemaking, and admittedly, I have a bias towards resource conservation.

Thanks for the comment!