Murky Waters

By Amy Mathews Amos

The waters of the United States are looking mighty murky right now because a seemingly simple question has become one of the most contentious policy debates in America today: Just what are the waters of the United States?

According to Bev McKay, Clarke County dairy farmer and member of the County Board of Supervisors, the answer to that question remains “brutally unclear.”

But Jeff Kelble of Boyce, who runs the Shenandoah Riverkeeper program, says any uncertainty is a ruse. “The Farm Bureau has manufactured a lot of fear on this,” he said.

At issue is what areas are protected under the federal Clean Water Act, first passed in 1972 to clean up rivers and streams throughout the country polluted by sewage, factories and more. For years the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers, the other federal agency charged with administering the Act, applied its protections to any surface water connected to navigable streams and rivers in some way, including tributaries and adjacent wetlands.

But lawsuits in 2001 and 2006 challenged the agencies’ interpretation, and the Supreme Court’s decisions in those cases muddied the waters. In the first, the Court ruled that migratory waterfowl like geese and ducks flying from one waterway to the next weren’t a sufficient connection on their own. In the second, Justice Antonin Scalia limited the Act’s scope to relatively permanent bodies of water and wetlands with a continuous surface connection to them. But Justice Anthony Kennedy wrote his own – somewhat more expansive – opinion that any waters with a “significant nexus” to navigable waters could be regulated. Just what that meant though, remained unclear.

Interest groups from all sides – including agricultural and environmental organizations – clamored for clarification. And so EPA set out to fill in the blanks.

The result is a 330 page scientific report aggregating more than a thousand peer-reviewed scientific studies showing how wetlands, headwaters, and even ephemeral waters that appear only seasonally or after rainstorms, are connected in intricate ways with larger waterways downstream. Biologically, these waters support fish, plants, amphibians, and other creatures that often move among different aquatic habitats at different stages in their lives. Chemically, these waters carry and absorb nutrients, pesticides, and other pollutants released from sewage systems, farms, and lawns. Collectively, headwater streams supply most of the water in major rivers. One-third of Americans rely on intermittent, ephemeral, or headwater streams for some or all of their drinking water, as do 2.3 million Virginians.

This spring, EPA and the Corps translated those scientific conclusions into proposed regulations for implementing the Clean Water Act. Since then, environmentalists and the American Farm Bureau Federation, a national agricultural trade group with chapters in every state, have been waging a war of words as the agencies seek public comments before finalizing the rule: When is a ditch a tributary? And when is a stock pond a wetland?

The seven-month public comment period ends November 14. The rule would apply across the United States and is separate from the Chesapeake Bay Clean Water Blueprint and Chesapeake Watershed Agreement, two federal-state agreements that set goals for improving water quality in the Chesapeake Bay watershed.

The Farm Bureau is campaigning aggressively against the proposed rule, calling it government overreach and predicting that ditches, farm ponds and puddles would come under EPA control. Farmers such as McKay and his colleague on the Board of Supervisors, beef farmer David Weiss, say they don’t know what to expect. They worry about EPA being overly aggressive, inspecting farmers’ land, and requiring permits for activities that previously were unregulated.

“The Farm Bureau is doing everything they can to drive a bus through tiny cracks,” says Kelble. The Congressional Research Service says it might be three percent of the waters on ag land. To squabble over three percent is just sad.”

Kelbe wonders whether the Farm Bureau is worried that if they don’t take a hard line things would be worse. “The Farm Bureau says its going to be every pond and ditch, but no one has been able to point out anything specific that would threaten farm operations in the rule,” said Kelble. I’ve asked a lot of people, and I haven’t had anyone been able to point it out to me. I’ve gone deep into the research, and as of this moment, is I don’t see it.”

The National Association of Counties also opposes the rule, saying it could inadvertently regulate roadside ditches and stormwater drains. Both groups supported a recently-passed House bill that would block the rule. (Congressman Frank Wolf voted for the bill, which President Obama has threatened to veto.)

But many businesses have rallied in support, including dozens of small breweries across the country under the banner “Brewers for Clean Water.” Old Bust Head Brewing Company in Fauquier County’s Vint Hill is one of them. Co-owner Ike Broaddus boasts that his company has “some of the best water around,” from wells that tap deep into an underground aquifer. “But we don’t take it for granted,” he says. “Clean water is a critical part of making beer.” Broaddus and his partners have installed a state of the art geothermal system and other energy saving features to heat and cool the brewery. Supporting clean water fits right into their company’s mission and culture. “It’s a no-brainer,” says Broaddus.

The American Sustainable Business Council, a nonprofit association of businesses dedicated to promoting a sustainable economy, also actively supports the rule, arguing that all businesses rely on clean water. Jeff Kelble learned this the hard way. A decade ago, he ran his own business as a fishing guide on the Shenandoah, Potomac and Rappahannock Rivers, with a bed-and-breakfast in Boyce. But devastating fish kills on the Shenandoah left him struggling to find good experiences for his clients. Eventually, he closed his business and began working instead to clean up the river for the non-profit Riverkeeper network. “I could have just left the area,” says Kelble. “But I decided to stay and fight.”

It turns out he would have had plenty to fight elsewhere as well. The original Clean Water Act sought to make all U.S. waters swimmable and fishable by 1985. But almost 30 years later, roughly 40 percent of the nation’s waterways still fail to meet that standard.

EPA and its supporters – which include major environmental and sportsmen’s groups — maintain that the proposed rule won’t expand jurisdiction beyond its historic reach. Instead, it will clarify requirements that have been on the books for decades and ensure better consistency. And they stress that, as in the past, all normal farming operations and prior converted croplands will remain exempt from permit requirements.

But cattleman and County Supervisor Weiss says farmers remain skeptical. “I don’t think the farmers of Clarke County think the EPA is a bad institution,” says Weiss. “But we’re wary of its power,” which he calls unchecked. “Farmers are afraid that this [proposed rule] is a way to come further into our property, and further restrict our movements. It’s almost impossible to convince us otherwise.”

Kelble says he’s sensitive to those concerns, but he has confidence the rule is a reasonable step toward cleaner water. “My position as a waterkeeper is always to protect public water ways and drinking water. So I’ve done my own research on this,” he said. “But I have not talked with anyone else who has done their own research. Most of them are quoting taking points of Farm Bureau.

The real question, says Kelble, is this: “Are people saying we want less protection for their waterways.”

Amy Mathews Amos writes about environment, health and history from Shepherdstown, WV Her writing has appeared in The Washington Post, Pacific Standard, Earth Touch News and elsewhere. She serves on the boards of the American Conservation Film Festival and Marine Conservation Institute and blogs for The Downstream Project at Follow her @AmyMatAm.