How To States Enforce The Clean Water Act

Science

Trench Warfare

The feds want to ascertain "waters of the The states" scientifically. Farmers are freaked out.

Water is held back from a lower-elevation subcontract by a section of Highway 4, pictured in 2005, that serves as a levee road in the Sacramento–San Joaquin River Delta, west of Stockton, California.
Photo by David McNew/Getty Images

Anybody wants clean h2o, only not everyone agrees on how to make sure information technology stays pollution-free. The Make clean Water Human action is one of the most successful pieces of environmental legislation in American history: Xl years ago, merely a third of the country's lakes and rivers could support fishing or swimming. At present two-thirds practise. But when a bill for the CWA was offered up in 1972, Richard Nixon vetoed it, complaining that it would cost likewise much. It took a bipartisan congressional override to enact the police force.

Controversy over the CWA continues, and a particularly ambiguous phrase in the law has been a perennial source of legal trouble. The CWA compels the Environmental Protection Agency and the U.S. Army Corps of Engineers to protect the integrity of the "waters of the United states of america." Industrial interests debate that a reference in the text of the law to "navigable waters" limits federal jurisdiction to waters you tin can boat on. This has let them become away with discharging pollution into smaller waterways. Regulators disagree, since pollutants in these waterways bleed into and threaten larger navigable waters, as well.

Regime agencies fix down rules for how to interpret laws they are tasked with enforcing. In April, the EPA proposed changes to how it will ascertain "waters of the United States" in its rules. Howls of protest take followed, particularly from farmers and ranchers. Congress ordered hearings on the subject this summer. Though the rule updates accept yet to be finalized—public comment is open until October—this week the Firm passed H.R. 5078, a bill to prevent the EPA from implementing the proposed rules. Its championship—"Waters of the United states of america Regulatory Overreach Protection Human action"—captures the attitude backside the bill.

In theory, the proposed update makes standards clearer by using consistent, scientific terms from hydrogeology to define which waters the Clean Water Act covers. In practice, its critics charge, the update is fourscore pages of technical and legal jargon that is "beyond the cognition of any farmer I know," says Will Rodger, a spokesman for the American Farm Bureau Federation, the land's largest farm lobby.

Farmers say some clauses in the proposed rules seem at odds with others. For instance, the regulation currently excludes farm ditches and drainage systems from requiring a permit. Normal farm activities, such as watering crops, aren't subject to regulation under the CWA, either. The EPA says that these standards should stay the same. Just because the proposed rule states that water institute in wetlands adjacent to larger bodies are "waters of the United States," farmers fear that they will no longer be exempt. (It is already standard EPA practice to consider wetland waters "waters of the United States," simply they are not explicitly defined as such in the text.)

"A good portion of the water on my rice farm would count as wetland 'water of the U.Southward.,' " Bob Stallman, head of the Subcontract Agency, told me. "Will I now demand a permit every time I desire to h2o my rice?" The rule exempts ditches that drain into uplands, but this has non mollified farmers. "No 1 builds the kind of mythical ditch they say is excluded under these rules," Stallman claims.

The EPA says this is nonsense—and some of its administrators accept expressed exasperation with what they meet every bit willful misinterpretation that has undermined efforts to craft sound policy. "The intent is not to make farmers' lives harder," an EPA official told me. Representatives from the agency have been traveling the country to explain their intentions and answer questions. They stress that input from citizens on how to brand the language clearer is welcome: Anybody should know only what the rules hateful and what they don't hateful.

But writing a rule to anybody'due south satisfaction is a tall club. Clear regulations have always been difficult to pen, and they take gotten harder. Decades ago, regulatory lawsuits were rare because they could be brought only after an bureau charged someone with violating the rules. This changed in 1967, when Abbott Laboratories argued that compliance costs meant those being regulated should take a say in objecting to them. In Abbott Laboratories five. Gardner,the Supreme Court agreed: Now regulators can be sued even before proposed rules are enforced.

The period of pre-emptive lawsuits keeps increasing: Notices of intents to sue the EPA for how information technology enforces the CWA accept risen thirty percent since 2003. "Regulators undoubtedly have to be more careful at present to write things with court preferences in mind," says Fred Emery, a sometime director of the Federal Registry who now teaches regulatory writing. Rules are written not merely to uphold the will of Congress only besides to avoid the wrath of courts.

The rumbling over the EPA'south "waters of the United States" rule is less about its imperfection, though, and more than an analogy of deep-seated mistrust of the government. Redefining waters with hydrological terms is unlikely to really change whatever farming practices, says Fouad Jaber, an agricultural engineer at Texas A&M University. And in an attempt to clarify the scope of its proposal, the EPA has issued an "Interpretive Rule" to explain its position and purpose, explicitly stating that it intends to leave famers' current practices alone.

Farmers don't buy information technology. "I don't trust a word out of their mouths," a Texas farmer told me.

"Don't let them confuse you," says Stallman. "Decades of experience tells me that it's only what's written that counts and not what they say." The more cynical farmers and their supporters propose that the CWA update is an case of authorities overreach and—some members of Congress would have y'all believe—an underhanded attempt to impose a "radical light-green agenda."

Changes to rules may exist intended as broad protective measures, just farmers see them as slapping punitive incentives onto the process. And farmers are already adept stewards of their lands and waters, argues Carl Lindgren of Cleremont Farm in Virginia. In Loudon County, where hardy Black Angus cows and prize-winning racehorses graze on verdant fields, information technology's common practice to line farm ditches with straw to absorb pollutants. Many farmers voluntarily work with federal agencies to develop conservation plans. "New" EPA rules make ordinary famers feel mistrusted, and so they bristle.

Yet collectively, agricultural runoff contributes 12 1000000 tons of pollution a yr to public waters, according to 2004 estimates (the most recent yr for which national data is available) from the U.S. Geological Survey. Phosphate and nitrate pollution from fertilizers washes into lakes and seas, causing algae blooms that leave toxins and dead zones backside. This summertime in Ohio, algae blooms in Lake Erie spurred by fertilizer runoff caused water shut-offs affecting 400,000 people. The Clean H2o Deed rules demand to be updated. But beyond that, the EPA should interpret its authority more broadly.

Hammering out agreeable standards is proving as hard as making water run uphill. Suspicion played up for political purposes does not help. Whatever is finally decided nigh what waters make up the "waters of the U.s.," a gusher of lawsuits looms.