If you read my last post on the Clean Water Rule then you are probably not too surprised that after the Environmental Protection Agency issued its final Clean Water Rule back in June 2015 that everyone got lawyered up and sued the EPA. I certainly wasn’t surprised. Nor was I surprised about the entities who sued EPA over the new Rule. Specifically it was a bunch of state governments – thirteen of them to be exact. All of the states who sued are west of the Mississippi River, except for Missouri. I don’t know why Missouri joined the lawsuit. Maybe they were just feeling frisky that day. Generally no one in the eastern part of the United States cares so fervidly about water issues as they do in the west. I’ll drag out that old bon mot about water in the west often attributed to Mark Twain: “Whiskey’s for drinking; water is for fighting.”
So a little background on why western states are so up in arms about the Clean Water Rule. As you may recall, the new Clean Water Rule seeks to clean-up the definition of what is and what is not a “water of the United States.” Numerous cases have been dragged up to the Supreme Court regarding the federal government’s interpretation of waters of the United States. The cases are primarily a result of the federal government issuing violations to certain parties who failed to acquire dredge and fill permits under the Clean Water Act. The last time such a case went to the Supreme Court, there were a number of Court members who were a little perturbed that EPA has never cleared up the definition. So EPA set off to write a Rule to clarify the meaning of waters of the United States.
A number of states in the west did not like the fact that EPA was writing a Rule. They didn’t like the Rule when it came out. And they have designated the Rule as a “federal water grab.” Water is managed by the state. In the west, where there is very little water, the state’s right to manage water is inviolate in their eyes. Why? Because, water is a local issue. This inviolate right to manage water is codified in Water Rights legislation throughout the west. There are State Engineers and government boards within the western states that manage the water within the states. Who has the right to each drop of water has been dissected and discerned by these government officials and boards. Still there are constant fights among water users. Lots of the water rights issues end up in court. The state governments are sensitive because they are dealing with a bunch of riled up citizens who have to fight and scrape for their share of water. So you get the picture, anything to do with water and water management in the west is a contentious issue.
Now put on top of that a new federal rule that is fairly encompassing and somewhat confusing. Although EPA sought to clarify the definition and the actual Rule itself is short, there was simply a lot of concern by the states involved in the lawsuit that the Rule was too encompassing. Personally I found the Rule pretty confusing and in seeking to understand it a little better I read the 300 page preamble. Preambles to Rules can be lengthy, but regulators use them to determine what the Rule actually means and how it was derived. By the time I finished reading the preamble I was thinking of the difficulty of determining on the ground what the Rule proposed. For example the Rule says tributaries to rivers are waters of the United States. That makes sense. Any waterway intersecting a river will affect the water quality, the biota in the river, and the physical nature of the river (size, flow, etc.).
The Clean Water Rule went on to include perennial, intermittent and ephemeral tributaries as covered under the Rule. Perennial streams are the ones that flow with water in the surface and alluvium most of the year. Intermittent streams are the ones that flow with water in the surface and alluvium some of the year. Ephemeral streams don’t have regular flow of water in the surface or in the alluvium. Ephemeral streams are precipitation dependent. They are the conduit of what my dad used to call gully washers. We all know that those gully washers can be sudden and huge. The precipitation event may not happen for long, but it can wash a ton of stuff into a gully and downstream into a river. So it makes sense that they are included as waters of the United States because such events can affect water quality. But then the preamble goes on to say that tributaries are characterized by the presence of physical indicators of flow: bed, banks and ordinary high water mark.
EPA uses the Army Corps of Engineer’s definition of ordinary high water mark: “The term ordinary high water mark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.”
This is not a new definition. It has been used for a long time. The Army Corps of Engineer’s guidance on how to determine the ordinary high watermark can be found in their Regulatory Guidance Letter No. 05-05 issued back in December 2005. Making the determination is tough enough in the east where there is a lot of water flow even in ephemeral streams, but trying to make that determination in some of these ephemeral streams in the west? I could see it as a bit hard. I suspect there might be a lot of fighting between two reasonable hydrologists in many such cases.
Frankly I kind of got lost in the preamble on the EPA discussion of adjacent waters. Adjacent waters are included in the definition of the waters of the United States. Adjacent means bordering, contiguous or neighboring rivers and streams, like wetlands, ponds, lakes, oxbows impoundments and the like. EPA gives three further definitions of what is covered. I won’t bore you with what those are. They are quite specific. But then EPA goes on to say, well there are some adjacent waters that will have to be determined whether they are a water of the United States on a case by case basis. These include prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, coastal prairie wetlands in Texas, and (oh by the way) waters within the 100 year floodplain of navigable waters and within 4000 feet of the high tide line of navigable waters. Well if you include all that in a case by case designation, then how can you consider the Clean Water Rule as a clarification of the meaning of waters of the United States.
EPA says in writing the Clean Water Rule that they used not only a compendium of scientific analysis from peer reviewed scientific literature, but they also used their forty some years of technical expertise in implementing the Clean Water Act.
EPA’s Clean Water Rule was supposed to take effect on August 28, 2015. What happened instead was that a Federal District Court in North Dakota issued an injunction against implementation of the Clean Water Rule. That means that the Clean Water Rule will not be implemented until the lawsuit brought by the 13 states is resolved in court (probably the Supreme Court).
I don’t blame EPA for a confusing Rule that broadly captures so much into the definition of waters of the United States. This is tough stuff and not an easy call. I’d say it’s what happens when you have to regulate natural processes like rivers and streams to make sure that the water quality is good and supporting a healthy group of biota, like fish. It is not at all clear-cut. I am going to read the EPA’s Science Report published as a support document for the Clean Water Rule. I suspect it will inform us of the many scientific certainties and uncertainties that EPA had to address in writing the Rule. I will be writing posts on the report. The EPA report is titled “Connectivity of Streams and Wetlands to Downstream Waters.”
