In February, the Trump administration issued an Executive Order "Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the 'Waters of the United States' Rule,'" designed to roll back the recently enacted Waters of the United States (WOTUS) rule. In June, the EPA released a 42-page proposal as a first step in that process. Last Thursday, the administration listed the repeal of the rule on the Federal Register. There is a brief 30-day comment period that closes on August 28th.
According to the listing in the register, the first step is "to rescind the definition of [WOTUS] in the Code of Federal Regulations...In a second step, the agencies will...conduct a substantive re-evaluation of the definition of [WOTUS]." It's unfortunate that the administration ignores the detailed and lengthy process that the EPA and the US Army Corps of Engineers went through to establish the definition in the 2015 rule. The process included many stakeholders, including people from industry, developers, agricultural groups and farmers, and took into account well over 20,000 comments. Now the process will start over again.
Why WOTUS Is Necessary
The pushback on the rule is twofold. The original scope of authority of the Clean Water Act (CWA) included "navigable waters" or those waters where interstate commerce could take place. The WOTUS rule expands the waters included under CWA protection and includes two tests for determining if a water body is under federal jurisdiction: a test for "surface connectivity" and for "significant nexus."
Farmers and ranchers feel a lot of heartburn over the first test - "surface connectivity" as it applies to waters on their properties. The rule expanded coverage to include "streams and wetlands that feed our rivers, lakes, bays and coastal waters." They expressed concern that the puddles and ditches on their properties were also subject to permitting and regulatory action under the new rule (they weren't), fearing that the additional regulatory burden would shorten their already tight window for things like planting crops.
The additional coverage provided by WOTUS is significant because many smaller streams - many of which run intermittently throughout the year - feed into larger water bodies that are the source of drinking water for millions of Americans. According to a now archived EPA site, "About 117 million Americans - one in three people in the US - get their drinking water from streams protected by the Clean Water Rule."
A look at agricultural impacts to water around the country serves to drive home the rule's importance and the coverage it provides to many Americans.
- Californians in the farm fields of San Joaquin Valley - more than one million people in the Valley have unsafe drinking water from both natural and human-caused contaminants including nitrates and pesticides. Most of those who are impacted live in small, rural communities, are disproportionately poor and Latino and rely on groundwater.
- North Carolinians living among the cattle, hog and chicken factories - animals grown in Concentrated Animal Feeding Operations (CAFOs) eat a lot of feed and generate a lot of poop, and the large volumes of poop that are collected have to be managed. Unfortunately, manure management techniques don't stop waste residue from running off the farm land where the manure is stored or sprayed. In North Carolina, manure pits cover over 6,800 acres of land and handle over 10 billion gallons of the wet animal waste produced each year in the state. Stream connectivity was never more important a concept.
- Iowans drinking contaminated water from over water 1,100 utilities - Lots of Iowans drink water that has contaminants that could raise cancer risks and increase problems during pregnancy - even if their tap meets federal standards. Many of these contaminants are tied to farming and, unfortunately, the smaller communities are the hardest hit.
Environmental Working Group Releases Its Tap Water Database
Last week was a big week for water quality, because on Wednesday, the day before the WOTUS Federal Register listing, the Environmental Working Group (EWG) released their long-awaited Tap Water Database. With EWG's database, you can enter your zip code and get a complete picture of what might be in your water.
Check out this map of places all around the country where farm pollution ended up in drinking water.
The EPA requires public water systems in the US to provide customers with an annual drinking water quality report, known as the Consumer Confidence Report (CCR). The CCRs are supposed to disclose levels of regulated contaminants that were detected in samples taken from the system. As EWG found out after doing their own research, the CCRs don't always tell the whole story about what might be in a system's tap water.
According to EWG, farming communities are especially vulnerable to contamination. Unless farm waste is well-managed - hence the importance of stream connectivity - the billions of pounds of fertilizer and pesticides applied and manure generated each year on farms across the country runs off and into connected water ways and ends up in drinking water systems and groundwater wells. For example, in 2015, EWG found that nitrate - coming from animal waste or agricultural fertilizers - was detected in more than 1,800 water systems serving 7 million people in 48 states.
Some farmers say that they shouldn't be regulated because they are naturally good stewards of the land, and many farmers are. Unfortunately, water pollution doesn't respect property lines, and so when a farm has bad waste management practices, whole communities can suffer the consequences. Here's hoping that the new rule the EPA is proposing to replace WOTUS takes all of this into account.