This story is the sixth in ScienceInsider’s After Election 2014 series. Through Election Day on 4 November, we will periodically examine research issues that will face U.S. lawmakers when they return to Washington, D.C., for a lame-duck session and when a new Congress convenes in January. Click here to see all the stories published so far; click here for a list of published and planned stories.
Today, we examine an issue that affects water, agriculture, and development in every congressional district.
It’s probably the toughest fight over ditches since World War I. Two federal agencies have proposed a clarification to how much turf they can regulate under the Clean Water Act (CWA), sparking bitter debate. The battle has drawn in members of Congress, largely along party lines, who are attempting to derail or defend the controversial proposed rule.
Critics of the proposal, including agricultural lobbyists, claim the federal government wants to regulate even the shallowest ditches and ponds on farms, imposing an unnecessary burden on private landowners. Environmentalists and other supporters deny that and say the new rule will offer better protection of streams and wetlands that provide clean water for people and wildlife. And scientists point out that the debate highlights the deepening divide between the desire for clear-cut policy and the complicated hydrology of the real world.
At the center of the fight is the CWA, which became law in 1972. It protects the “waters of the United States” in several ways. For example, it gives the Environmental Protection Agency (EPA) the authority to regulate pollutants discharged into rivers and lakes. Another major component of the law protects wetlands and smaller streams, requiring a permit from the U.S. Army Corps of Engineers for any harmful activity, such as dredging and filling. The agencies have traditionally claimed the right to regulate not just rivers and lakes with boat traffic, but also protect much smaller and shallower water bodies, including wetlands.
The extent of the government’s reach, however, has become the subject of extensive litigation. Several disputes have gone all the way to the U.S. Supreme Court. The most recent decision—in a 2006 case about wetlands connected to navigible waters only by a ditch—created confusion and uncertainty. The plurality of the court decided something that sounds straightforward: EPA and the corps have jurisdiction over wetlands or other water bodies if there is relatively permanent flow into a navigable water body. But Justice Anthony Kennedy articulated another legal test: Waters would qualify for protection if they “significantly affect the chemical, physical, and biological integrity” of downstream navigable waterways.
That’s where science complicates life for regulators, who ideally want clear and simple policies to follow when deciding whether to issue permits. Wetlands and small ponds can vary enormously in their biology and hydrology—so which ones have a significant enough connection to merit protection? Another issue is scale: It can be difficult to demonstrate that small wetlands or streams have a significant impact on downstream waters by themselves, but, in combination, they certainly do.
With EPA taking the lead, the agencies are also trying to draw bright lines on a matter of practical importance for bureaucrats and landowners: exactly what kinds of waters should be routinely regulated (headwater streams are one important group that qualifies) and which must still be evaluated on a case-by-case basis (seasonal playa lakes, for example). The proposed rule relied on a lengthy review of peer-reviewed publications and received positive marks from EPA’s Science Advisory Board. Last month, the board told EPA that the draft rule was justified by the underlying science.
Support from the scientific community hasn’t lessened the clamor over the rule. The American Farm Bureau Federation (AFBF) says that the draft rule should be tossed out and is widely promoting its “Ditch the Rule” campaign. In response, EPA officials, including Administrator Gina McCarthy, have hit the road, hosting some 350 public meetings with farmers and other stakeholders to explain the rule. EPA says long-standing exemptions for farmers will continue, but agricultural groups remain skeptical. "The interpretive rule actually narrows the scope of what is considered normal farming and ranching practices" exempted from regulation, claimed Ashley McDonald of the National Cattlemen’s Beef Association in Washington, D.C., in a statement last month.
Congress has taken an interest. On 9 September, the House of Representatives passed H.R. 5078, which would block the rule. The vote was 262 to 152, with 35 democrats joining the Republican majority. The rule “really facilitates a capture of private property using the Clean Water Act and this onerous authority as a tool for imminent domain," said bill sponsor Representative Steve Southerland (R–FL) in a statement.
In the Senate, Senator John Barrasso (R–WY) introduced a related bill (S. 2496) this past June, but it didn’t go far. The 38 cosponsors were all Republicans. Although several Democrats from conservative states, such as Senator Mary Landrieu (D–LA), have publicly opposed the rule in the past, they didn’t sign on to Barrasso’s bill.
The White House is standing firm. After the House vote, the administration issued a statement suggesting that President Barack Obama would veto any such attempt to block the rule. “That’s exhibit A that they are standing behind this rule,” says Jan Goldman-Carter of the National Wildlife Federation in Washington, D.C. “There is a commitment on the part of the White House to see this rule through to its conclusion.”
Even if opponents can’t block the rule with legislation, they have other tactics. Senator John Hoeven (R–ND), a member of the Appropriations Committee, has said he will continue to try to block EPA from spending any money on the rule. Another hint of legislative maneuvering: AFBF declined to comment on its lobbying efforts, calling the topic “too sensitive just now.”
No matter what happens during the lame-duck session, the next Congress—which could have both houses under Republican control—will have the opportunity to influence the rule, too. Although EPA has no deadline, it has said it intends to issue a final rule in the spring. The comment period on the draft rule is open until 14 November.