The United States lost a total of more than 62,000 acres of coastal wetlands between 2004 and 2009.[i] The state of Louisiana alone loses an area of wetland the size of a football field every hour.[ii] In total, the lower 48 states have lost roughly half of the 220 million acres of wetlands estimated to have been in existence in the 1600s, before the introduction of modern industry and agriculture.[iii]
Wetlands are crucial for both humans and the environment, controlling flooding, filtering pollutants from water, and serving as important habitat and breeding grounds for aquatic species. More than one-third of U.S. endangered or threatened species live exclusively in wetlands, and nearly half of all such species inhabit or use wetlands at some point in their lives.[iv] Fish and shellfish that inhabit or use U.S. wetlands make up 75 percent of the country’s total commercial seafood harvest and have an estimated annual value of $15 billion.[v]
Streams, tributaries, and many other kinds of more isolated waters are also disappearing or suffering degradation at alarming rates, thanks to increasing activities related to agriculture, construction, and extractive industries. Similar to wetlands, these water bodies supply unique habitat to a variety of animals and plants—including endangered species and economically valuable migratory birds—and they are essential to maintaining the health of the larger rivers and lakes to which they are connected. In particular, these water bodies serve as important conduits of nutrient non-point source pollution that now is among the leading threats to water quality in these larger rivers and lakes.
The consequences of destroying wetlands and these other more isolated water bodies can be catastrophic. For example, this past summer, a large toxic algal bloom in Lake Erie contaminated public drinking water supplies in Toledo, Ohio, leaving nearly a half-million area residents without access to potable water for several days. The algae, a growing layer of which covers Lake Erie every summer, is the result of rising water temperatures and the massive influx of nutrient pollution runoff, much of it in the form of fertilizer and manure from the surrounding farms and livestock feeding operations. Nutrient non-point source pollution is causing similar problems in other larger water bodies throughout the United States, including the large algal blooms that afflict the Chesapeake Bay and the massive dead zone that forms in the Gulf of Mexico each year.[vi]
A recent series of muddled U.S. Supreme Court decisions has spawned widespread confusion over whether the Clean Water Act’s protections now cover many of these wetlands and more isolated water bodies. The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (the Corps) have been attempting to clarify this confusion ever since. A 2007 congressional oversight memorandum concluded that because of this ongoing confusion “[h]undreds of violations have not been pursued with enforcement actions and dozens of existing enforcement cases have become informal responses, have had civil penalties reduced, and have experienced significant delays.”[vii] Without a clear definition of whether several common categories of water bodies are covered by the Clean Water Act, EPA regional offices must now assess these waters on a case-by-case basis, which wastes the agency’s scarce personnel and financial resources and undermines the effectiveness of its Clean Water Act enforcement program.
To address this confusion, the EPA and the Corps have launched a joint rulemaking that attempts to establish a clear regulatory definition that, consistent with both the previous court decisions and the best available science, delineates which water systems are covered by the Clean Water Act. In general, the rule seeks to reduce the categories of waters that must be assessed on a case-by-case basis by identifying and defining those categories that are always covered by the Clean Water Act and those that are never covered.
What’s the Holdup?
Editor's Note: On May 27, 2015, EPA issued its final rule. Read this blog post for more.
The EPA and the Corps formally published a joint “waters of the United States” proposal in April 2014, but the history of the rule stretches back much further. Prior to initiating the formal rulemaking, the agencies had originally sought to clarify the legal definition through a guidance document, a less formal means of agency policymaking that is usually quicker and involves fewer procedural hurdles. Nevertheless, the process for developing the guidance document needlessly stretched on for nearly four years before the agencies ultimately abandoned it in September 2013.
Progress on the document was slowed when the agencies subjected the guidance to full-fledged notice and comment procedures and two rounds of review by the White House Office of Information and Regulatory Affairs (OIRA), even though guidance documents are legally exempted from these time-consuming procedures. OIRA sat on the agencies’ “proposed” guidance for over 16 months—well beyond the four months that is permitted for OIRA’s normal rule reviews—before it finally completed the first round of review in April 2011. Thereafter, the agencies initiated a lengthy public comment period, which ran through the end of July 2011. The EPA and the Corps spent nearly two years revising the guidance in response to the public comments before sending the “final” version of the document to OIRA for a second round of review in April 2013. The guidance languished there for five months before the agencies finally withdrew the document in September 2013 when they initiated their “waters of the United States” rulemaking.
Much like the abandoned guidance document, the development of the “waters of the United States” rulemaking has been plagued by a series of delays. The review period for the draft proposal lasted over six months before OIRA released it in March 2014. The EPA and the Corps launched the public comment period for the proposal in April 2014 and has since extended the deadline for submitting comments twice. If the current deadline of November 14, 2014, holds, then the comment period will have lasted a total of 208 days, well beyond the standard 30- to 60-day comment period used for most rules.
The agencies’ slow progress on both the guidance document and the pending rulemaking are at least in part attributable to the fierce industry opposition both actions have faced. Over the past several months, the Farm Bureau and other corporate interest groups representing the homebuilding, oil and gas, and mining industries have launched a massive public campaign against the “waters of the United States” rule that includes radio commercials and even a YouTube music video.[viii] These groups have used the campaign to spread blatant misinformation about the proposal’s provisions, including that the rule would allow the EPA to regulate puddles in backyards and prohibit farmers from building fences in their fields.[ix]
Several anti-regulatory Members of Congress have joined the attacks against the pending “waters of the United States” rule. These members have held several highly politicized hearings at which industry groups were given the opportunity to recite many of their talking points and misinformation against the rule.[x] They have also introduced various bills aimed at blocking the EPA and the Corps from completing either the rule or the abandoned guidance document.[xi] Over the past few years, each of the House appropriations bills to fund the EPA and the Corps has included provisions that would prohibit the agencies from using any of the appropriated funds to work on either the guidance document or the pending rulemaking.[xii] While many of these bill have passed the Republican-controlled House of Representatives, none have advanced in the Senate or been enacted into law.
What Should the Rule Do?
To ensure the strongest possible protections for critical wetlands and more isolated water bodies, the “waters of the United States” rule should clarify that the Clean Water Act’s protections extend to any water body “that significantly affects the chemical, physical, or biological integrity of” the kinds of larger rivers or lakes that are already covered by the Clean Water Act. Under this approach, all tributaries of rivers and lakes covered by the Clean Water Act would automatically receive protection. In addition, this test would automatically include all streams, ponds, and wetlands found in floodplains or riparian corridors.
The proposal issued by the EPA and the Corps follows this general approach, but it could be strengthened in important ways. In particular, the agencies should follow the recommendations presented by the EPA’s Science Advisory Board in its September 2014 draft report on the proposed rule with regard to additional categories of water bodies that should receive automatic protections. In the report, the Science Advisory Board criticized the agencies for being too conservative in their approach to addressing several categories of more isolated waters that either are not tributaries or are not located within floodplains or riparian corridors. In general, the agencies’ proposal would require that these “other waters” be evaluated on a case-by-case basis to determine if they are covered by the Clean Water Act—a potentially time-consuming and resource-intensive process. The Science Advisory Board report explains that the scientific literature clearly establishes that many of the water bodies defined by the proposal as “other waters”—including prairie potholes, Carolina and Delmarva Bays, and western vernal pools—have a significant impact on larger water bodies that are covered by the Clean Water Act. As such, the proposal should define these categories of smaller water bodies as automatically covered by the law’s protections, so that the EPA and the Corps do not have to engage in wasteful case-by-case evaluations that would ultimately reach the same determinations. By following this recommendation, the agencies would ensure Clean Water Act protections for a greater number of water body types, while reducing the number of water bodies that must be subjected to time-consuming and resource-intensive case-by-case evaluations.
Update: The EPA and the Corps completed the final “waters of the United States” rule in May 2015, and it was published in the Federal Register in June 2015, which triggered the period when the rule could be legally challenged. Already, the rule has been subject to several legal challenges brought by industry groups and conservative states—which are arguing that the rule is too strong—as well as by environmental groups—which are arguing that the rule is too weak.
Unfortunately, as groups such as the Center for Biological Diversity have noted, the final rule appears to narrow—rather than expand—the overall scope of the Clean Water Act’s protections as compared to historical practice, while expanding exemptions for mining and industrial agricultural and livestock operations. Not only are these provisions contrary to the scientific evidence on which the rule is purportedly based; they will leave critical smaller waterbodies, streams, and wetlands more vulnerable to pollution and contamination by mining waste and various nonpoint and agricultural sources. Concerns about the weaknesses of the final rule seem to have been validated by leaked memos from experts at the Corps. The memos, which were drafted in April and May 2015 while the draft final rule was under OIRA review, outline the agency experts’ disagreements with changes that had been made to the proposal that would improperly narrow the Clean Water Act’s scope. Among other things, the experts argued that the scientific evidence justified a more expansive rule.
It remains to be seen whether the final rule will be upheld by the courts, and whether the EPA and the Corps will be ordered to revise the rule to extend its protections consistent with the available scientific evidence. In addition, the rule is under threat from conservative members of Congress, who are considering a variety of legislative measures—including appropriations riders, standalone bills, and Congressional Review Act resolutions of disapproval—aimed at blocking this rule.
Update 2: In November 2015, the Senate passed a resolution pursuant to the Congressional Review Act that would block the “waters of the United States” rule and prevent the EPA from issuing a substantially similar without express authorization from Congress. The House of Representatives followed suit in January 2016. President Obama vetoed the resolution shortly thereafter, but the Senate failed to muster the necessary votes to overturn that veto, leaving the rule in place for now.
Litigation over the rule continues, with several legal challenges pending in various federal district and appeals courts across the country. The courts are still determining whether and how many of the courts have jurisdiction over the suit as permitted by the Clean Water Act. In October 2015, one of those courts, the Court of Appeals for the Second Circuit, issued an order that stayed the rule’s implementation nationwide until the legal challenges against it have been adequately resolved. Prior to that decision, the rule had been stayed in 13 states pursuant to an order form a federal district judge in North Dakota. Because of the nationwide stay, the EPA is prohibited from relying on the rule to provide automatic protections under the Clean Water Act to the categories of waters that are newly defined as jurisdictional, including wetlands, certain headwaters, and other smaller, isolated water bodies.