Clean Water Showdown

In light of the fact that this battle was lost thanks to the Trump administration I thought it was time to repost this piece from Fly Rod & Reel magazine.


The Clean Water Act has been manipulated by and for polluters, so during the 21st Century most US waters have been getting dirtier.

Photography by: Marianne Morgan

By the summer—or maybe fall—of 2015 we will know whether an epic battle to save one of our most important environmental laws has been won or lost. The Obama administration is taking on polluters who were given a pass by the previous administration to defile waters of the United States.

Yeah, it’s way past time to stop beating up on George W. Bush. But beating up and reporting history aren’t the same thing, especially when that history requires present-day action.

Now that President Obama doesn’t have to worry about getting re-elected that action is forthcoming. He is less swayed by lobbyists; and, as he has promised, he’s doing administratively what Congress has refused to do legislatively.

First, some background: No statute has benefited anglers and hunters more than the Clean Water Act, passed in 1972 by a Congress so passionate about restoring ecological health to all “waters of the United States” that it overrode a Nixon veto by landslide votes: 247 to 23 in the House; 52 to 12 in the Senate.

If you’re old enough to have to squint when you tie on #18 flies, you’ve seen plenty of examples of what the Clean Water Act has accomplished, and in the past I’ve discussed a few in these pages. So I’ll now offer just one—the rebirth of America’s first- and worst-polluted waterway, the Blackstone River.

The Blackstone kicked off America’s industrial revolution in 1793. It rises under the streets of Worcester, Massachusetts and flows practically though my backyard in Grafton. When I moved here in 1970 my insurance agent’s dog frolicked in the river and died as a result. About that time the Worcester Fire Department used Blackstone water to douse a small blaze in the College of the Holy Cross’s field house. Most of the football team contracted hepatitis, and the season had to be canceled.

Back then the river’s upper mainstem sustained but one species of fish, white suckers, and virtually one species of invertebrate, sludge worms. By the turn of the 21st Century it sustained 23 fish species, and the bottom was carpeted with crayfish.

But since then the Blackstone, which still has a long way to go, hasn’t been getting cleaner, and most waters of the United States have been getting dirtier. One reason is increasing “non-point-source pollution” such as urban runoff, far more difficult to control than sewage and industrial waste. Another is exemptions for agriculture built into the Clean Water Act for political purposes (it could not have passed without them). But the main reason is that the Clean Water Act has essentially been placed on hold. Most media, including most environmental media, wrongly blame the Supreme Court.

In 2001, after successfully suing the Army Corps of Engineers for denying its permit to trash a so-called isolated wetland, the Solid Waste Agency of Northern Cook County, Illinois (SWANCC) was able to convert the wetland to a landfill. Somehow it convinced five Supreme Court justices that the wetland could not be defined as “waters of the United States.”

The scope of Clean Water Act jurisdiction is as broad as the Constitution’s Interstate Commerce Clause, under which the feds can regulate activities that affect business across state lines. There are all sorts of ways to affirm such business—commerce related to fishing, hunting, wildlife viewing and boating, water supplies tied to groundwater flow, even flooding and pollution because both can cause damage to more than one state. But for convenience the Corps based its jurisdiction over the SWANCC wetland on migratory-bird habitat.

By itself the SWANCC decision was significant only in that it was stupid. The justices ruled that the federal government can’t regulate polluters in non-navigable “intrastate” waters (those completely in one state) simply because migratory birds feed, breed or rest there. There wasn’t a word about all the other interstate business.

The Bush administration could have applied any of the other affirmations had it wished to do so. It did not. Instead it published 2003 guidance that allowed polluters to foul millions of wetlands, lakes and ponds that are intrastate, can’t float a boat and aren’t adjacent to or obviously connected by surface water to streams, rivers or coastal waters.

This guidance, still in effect as I write, effectively stripped protection from what the Bush administration called “isolated waters” such as prairie potholes, playa lakes, vernal pools and Carolina bays (half a million or so elliptical depressions concentrated along the Atlantic Seaboard south from New Jersey to Florida).

There is no such thing as “isolated waters.” Birds, mammals, reptiles, amphibians, insects, plants and even fish (whose eggs are transported on the legs of birds) trade between waters that only appear isolated. And all water, including groundwater, flows downhill, usually into bigger waters.

But for the past 12 years polluters have been free to degrade an estimated 20 million wetland acres, including wetlands that provide flood storage and critical fish-and-wildlife habitat.

In 2005, the Supreme Court took on the question of federal jurisdiction over millions of additional wetlands and more than two million miles of non-navigable streams. The case involved Michigan shopping-mall developer John Rapanos, who, having ignored repeated cease-and-desist orders, destroyed three wetlands that were “isolated” but adjacent to streams that flowed into Lake St. Clair, a traditionally navigable water.

Ultimately the Supreme Court couldn’t figure out what to do. Four justices, mindful that pollution flows downhill, agreed with the Corps that all wetlands adjacent to tributaries of navigable waters should be protected. Four other justices basically agreed with Rapanos that navigable waters should be protected only from pollution dumped directly into them. A ninth justice, Anthony Kennedy, opined that wetlands had to have a “significant nexus” with navigable waters to qualify for protection. With no clear majority opinion the significant-nexus ruling became primary by Supreme Court precedent.

While Kennedy didn’t say what a significant nexus might be, the Bush administration could have defined it with a published rule. Instead it undermined Clean Water Act enforcement with vague guidance that left field agents befuddled and fish-and-wildlife habitat unprotected.

The one thing the administration’s guidance did make clear was that polluters now were free to defile waters of the United States absent proof of a significant nexus (whatever that meant) between navigable waters and dump sites.

The resulting legal limbo has left 60 percent of our stream miles and millions of additional wetland acres at risk. These waters provide spawning, nursery and refuge habitat for all manner of fish.

So here’s the kind of sense the ongoing Bush guidance makes: Hazardous waste may not be dumped directly into your drinking-water supply. But a polluter may be within the law if he dumps it into a stream that feeds that supply.
“We are, in essence, shutting down our Clean Water programs in some states,” EPA attorney Douglas Mundrick told The New York Times. “This is a huge step backward. When companies figure out the cops can’t operate, they start remembering how much cheaper it is to just dump stuff in a nearby creek.”

Between 2006 and 2010 EPA reported that at least 1,500 major pollution investigations were shelved.

In 2007 the Corps determined that the Clean Water Act didn’t apply to a 15-acre lake ringed with houses and churned by swimmers because the Corps considered it isolated. And when the US sued the Chevron Pipe Line Company for fouling a Texas stream with 126,000 gallons of oil, the court found that there was no violation because it considered the stream isolated.

The guidance inherited by the Obama administration makes a mockery of public will and Congressional intent. The Clean Water Act says this: “The Congress hereby declares that it is the policy of the United States that there should be no discharges of oil or hazardous substances into or upon the navigable waters of the United States.” It doesn’t say “except by gravity.”

The Obama administration and enlightened lawmakers have made repeated efforts to repair the vandalized Clean Water Act. Recall the aptly named and ill-fated Clean Water Restoration Act (See: “Love That Dirty Water,” June 2009). All the bill sought to do was reinsert the Clean Water Act’s teeth by reaffirming longstanding protections for non-navigable wetlands, lakes and streams. Not a single condition or constraint would have been added. But a frenetic disinformation campaign by polluters killed the bill in session after session.

The most outrageous untruths issued from the American Farm Bureau Federation. These were recycled and compounded by water diverters, home builders, stock growers, miners, property-rights zealots, and conservative blogs, commentators and think tanks.

The Obama administration tried to fix the Clean Water Act in April 2011 with proposed guidance for Corps and EPA field staff. The agencies received some 230,000 public comments, the vast majority supportive. But the administration backed off in the face of another disinformation campaign by the same special interests that kept shouting down the Clean Water Restoration Act.

In April 2014 the administration got bolder, publishing a proposed Clean Water Act rule in the Federal Register that would undo much of the damage done by the Bush team. It’s a terrific first step. Still, it leaves unprotected such wetlands as prairie potholes, playa lakes, vernal pools, desert springs, bogs, fens and Carolina bays. As the National Wildlife Federation notes, all these habitats and pollution filters “are important to the health of downstream rivers and bays . . . . To restore longstanding protections for these waters, we must make the scientific case for protecting them as ‘waters of the United States.’”

EPA administrator Gina McCarthy offers this: “The Clean Water Act has been bogged down by confusion. Two complex court decisions narrowed legal protections and muddled everyone’s understanding of what waters are—or are not—covered under the law. Protections have been especially confusing for those smaller, vital interconnected streams and wetlands. Some may think that this rule will broaden the reach of EPA regulations—but that’s simply not the case. Our proposed rule will not add to or expand the scope of waters historically protected under the Clean Water Act. In the end—the increased clarity will save us time, keep money in our pockets, cut red tape, give certainty to business, and help fulfill the Clean Water Act’s original promise: to make America’s waters fishable and swimmable for all.”

Close to 500 organizations advocating fishing, hunting, watersheds, health, farming, ranching and religion support the proposed rule. It would do nothing more (less in fact) than the Clean Water Act did before emasculation by the Bush administration. Ditch regulations would be reduced for the first time because the rule would exclude ditches constructed through dry lands that don’t hold year-round water. All exemptions for farming, ranching and forestry would remain in place.

Still, the Farm Bureau is telling and often convincing the media that the proposed rule threatens farmers. “Nearly every drop of water that falls would be regulated by the federal government,” the Farm Bureau falsely proclaims. “It could be a gutter, a roadside ditch or a rain puddle. But under the new law, the government gets control.”

Referencing its own fabricated assertion that the feds would regulate ditches, the Farm Bureau has launched a “Ditch the Rule” campaign. The mentality of the targeted audience is apparent in the viral You Tube video in which a woman in a white dress strolls barefoot through a ditch recently hacked through dry land. To the tune of “Let it Go” (from Disney’s animated movie Frozen, current obsession of pre-school girls) she sings: “The ditch is dry on the farm today. Not a puddle anywhere. No water flowing. But the government doesn’t care. Once more the EPA is knocking at our door with a brand new rule. They want to regulate us more. They’ve tried before; and we said no. Why should they control what doesn’t flow . . . ? That’s enough. That’s enough. Can’t take away any more. That’s enough. That’s enough . . . . Don’t need more government anyway.”

Parroting Farm Bureau disinformation, the conservative blog Breitbart called the proposed rule “one of the biggest land grabs by the federal government ever perpetrated on the American public.”

“It really disturbs me when I hear ‘land grab’ because it sounds like the federal government is taking land; and there’s nothing in the act or proposed rule that allows that,” declares Chesapeake Bay Foundation scientist Doug Myers. “What’s important to remember is that the same exemptions for agriculture have existed all along. ‘Land grab’ is a very familiar refrain every time there’s any proposed change to the Clean Water Act. It comes from a small, vocal minority.”

The Farm Bureau’s claim that it speaks for the American farmer is about as credible as the NRA’s claim that it speaks for the American hunter. Smart farmers understand that their livelihood depends on sources of clean water. That’s why the National Farmers Union and the American Farmland Trust have supported restoration of the Clean Water Act. A few hours after EPA announced the proposed rule the National Farmers Union called the rule “ag-friendly,” observing that “NFU and other agricultural stakeholders made their voices heard, and EPA took notice.”

In an op-ed for the Toledo Blade Joe Logan, president of the Ohio Farmers Union, wrote this: “The rule’s detractors, trying to further their own political or financial interests, seek to use the EPA as a bogeyman and discredit the usefulness of any agency oversight of water quality on private land. They also discredit farmers who are trying to do the right thing for all Ohioans. Farmers have a professional stake in the EPA rule, because it will clarify the law and give us certainty without undue encroachment on our operations. But while we are farmers, we are also parents, grandparents, Ohioans, and Americans. We are boaters, fishermen, and consumers of Great Lakes fish. Ours is more than a commercial interest. We have an emotional and moral stake in passing on waters that are clean and pure to our children and our grandchildren.”

There’s a major effort in Congress to block the proposed rule and institutionalize the Bush-era dirty-water guidance. And EPA has had its staff cut by the recent budget bill. On the other hand, EPA’s McCarthy promises that the administration won’t again back off on Clean Water Act restoration. And President Obama vows to use his veto pen when the Republican-controlled Congress submits bills that contravene the public good.
He may well have to do so. On September 9, 2014, the House attempted to block the proposed rule by passing the “Waters of the United States Regulatory Overreach Protection Act of 2014.” There were 227 Republican yeas, one Republican nay, 35 Democrat yeas, 151 Democrat nays. To see how your representative voted go to:

A companion bill—The Protecting Water and Property Rights Act of 2014—was introduced by 38 of the worst anti-environmentalists in the Senate, all Republicans. To see the list, go to the following link and click on “Cosponsors”:

Now, in the new Congress, House and Senate Republican leaders are jointly working to block the EPA rule and cement in place the Bush-era dirty-water guidance.

If you live in one of the many states supposedly represented by politicians who seek to preserve dirty-water provisions, make your feelings heard about their fight for the alleged right of private business to destroy the public’s fish and wildlife.

Even people who don’t value fish and wildlife but are capable of rational thought should be turned off by a Clean Water Act manipulated by and for polluters. It squanders money. Just in terms of pollution filtration, flood control, fishing, hunting and wildlife viewing, wetlands that would be protected by the proposed rule are worth $129,000 to $292,000 per acre, depending on region and soil type. This means, discounting all the unmeasurable, intrinsic worth of clean water, the proposed rule would annually produce $388 million to $514 million in public benefits.

I’ll leave you with a scene from a wild trout stream I’ll call Secret Brook. There are thousands of them, and maybe this one is in your state. The scene isn’t current; it’s from a possible future, a future the American Farm Bureau Federation and its allies, including much of the US Congress, are fighting for.

In spring the banks of Secret Brook are bright with cowslips, trilliums and dog-tooth violets. Hermit thrushes carol and ruffed grouse drum. You can wade upstream all morning and be farther into the woods than when you started. Even in high summer the water is cold, and it’s so clear that you sometimes can’t tell where it ends and the air begins. The woods surrounding it are permanently protected.

But outside the protected zone is an industrial-scale pig farm. Before the SWANCC decision and Bush guidance the Clean Water Act required the pig farm to store and process its waste. During the last decade, however, the containment vats have sprung leaks. Replacing them would be expensive, so whenever it rains, pig feces and urine cascade into Secret Brook via a feeder stream that, according to Bush guidance and a federal court, is “isolated.” This makes it all perfectly legal.

The trout, of course, are dead; and caddisflies, mayflies, stoneflies and crayfish have been replaced by sludge worms. A few white suckers survive.

If this scene disgusts and frightens you, support the Obama administration in preventing it.

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--from Fly Rod & Reel