Sustained Outrage

About that new EPA ” Clean Water Rule” …

Gina McCarthy

U.S. Environmental Protection Agency Administrator Gina McCarthy, left, takes questions from the audience after delivering a speech at Harvard Law School in Cambridge, Mass., Tuesday, July 30, 2013. (AP Photo/Steven Senne)

Yesterday, I posted a brief item about the release by the U.S. Environmental Protection Agency of its new “Clean Water Rule” in which I noted that my inbox was filling up with responses about the EPA action.

The responses were pretty predictable, really. Just about every environmental group you could possibly name jumped out there to cheer lead about it. See, for example, this statement from a coalition of citizen groups:

Today the Obama administration closed loopholes that left the drinking water sources for more than 1 in 3 Americans at risk of pollution and destruction with the release of its long-awaited Clean Water Rule. A number of environmental, wildlife, and sportsmen groups praised the rule, which ensures Clean Water Act protections for streams and wetlands across the country, but warned that there are multiple efforts underway in Congress to weaken, undermine, or stop the rule completely.

On the other side of things, all of the industry groups I heard from were complaining strongly about the EPA rule. Here’s the National Mining Association:

We remain deeply concerned that the promised clarity from this rule comes at the steep price of more federal interference with state, local and private land use decisions. The U.S. federal permitting process is among the slowest, most costly and inefficient systems in the world. This rule faces a high hurdle in convincing us that the permitting process will improve now that only the most tenuous connections form the basis for imposing federal requirements on top of existing state protections.

West Virginia political leaders were also pretty predictable. Most said something along the lines of what Sen. Joe Manchin put in his prepared statement:

It is completely unreasonable that our country’s ditches, puddles and other un-navigable waters be subjected to the same regulations as our greatest lakes and rivers, and implementing this rule will certainly have a significant impact on West Virginia’s economy, hindering businesses, manufacturing and energy production.

Pretty much, most of the media coverage I read (see here, here and here for example), confined their story to the narrative that EPA and its friends on the environmental community love the rule, while business and industry — and their friends on Congress — hate it.

But then I came across this statement, issued by the Water Keeper Alliance and the Center for Biological Diversity:

The “Clean Water Rule” issued today by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers reduces the agencies’ jurisdiction over waters that have been covered under the Clean Water Act since the 1970s. The final rule fails to protect streams and rivers that have historically been protected under the Clean Water Act, exempting industrial-scale livestock facilities, and allowing streams and rivers to be impounded or filled with toxic coal ash and other waste.

The preamble to the rule states: “The scope of jurisdiction in this rule is narrower than that under the existing regulation. Fewer waters will be defined as ‘waters of the United States’ under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries.”

Barack Obama

Marc Yaggi, executive director of Waterkeeper Alliance, said:

The final rule inexplicably rolls back protections for streams and rivers, which feed into our water supplies. Since only waters that are included within the final rule can be protected under the core water quality protections and pollution prohibitions of the Clean Water Act, it is frightening to think what this will mean for the tributaries that are no longer covered.

Of specific interest to West Virginians:

The EPA also wrote into the new rule an exemption that would allow polluters to dam up mountain streams to form waste lagoons that would not be subject to the protections of the Clean Water Act. More than 30 years ago, when the definition was last revised, the agency inserted the exclusion as a footnote, after the rule had been finalized. Because the provision was added after public comments had been accepted, the public never had an opportunity to provide input on the revision. The agency elevated the waste-treatment system exclusion from a footnote into the main body of the rule updates it proposed in 2014, while declaring that it would not consider comments regarding this repositioning of the provision because the change was merely “ministerial.”

Pete Harrison, staff attorney for Waterkeeper Alliance added:

This maneuver was deliberate sleight of hand by the EPA, designed to cheat the public out of the opportunity to comment that the agency promised 30 years ago when it unilaterally and illegally inserted the exclusion in the first place.

Locally, the West Virginia Rivers Coalition issued a statement yesterday headlined “West Virginia groups celebrate new clean water rule“:

The West Virginia Rivers Coalition and other members of the WV Safe Water Roundtable support a new rule that restores protections for West Virginia’s vulnerable headwater streams under the Clean Water Act. Over half (54%) of West Virginians get their drinking water from sources that rely on small streams now protected under this rule.

“This is a good day for water drinkers, river users, and wildlife in West Virginia,” said West Virginia Rivers Coalition Executive Director Angie Rosser. “Our state’s headwater streams supply the drinking water sources for millions of people; this rule is important for the health of our communities and everyone downstream.”

The Rivers Coalition also distributed a memo to editorial boards and West Virginia media outlets to encourage support for the EPA rule. When I asked Angie Rosser about the concerns raised by the Center for Biological Diversity and the Waterkeeper Alliance, she acknowledged they were legitimate:

The Clean Water Rule doesn’t go as far as we’d like, but it’s better than no rule at all. Despite it’s shortcomings, it brings necessary regulatory clarity for our headwater streams; in this way, it’s good for West Virginia.

In today’s political climate, great compromise is required to get anything done. We think the rule strikes a more than fair balance.