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Politics and clean water

by RICHARD H. MAYS Special to the Democrat-Gazette | November 29, 2015 at 1:52 a.m.

Most Americans are spoiled by having clean water available by simply turning the spigot and letting drinkable water flow. Clean water is a necessity of life that we take for granted as part of our developed society, and we seldom give thought to whether there are harmful contaminants in what we are drinking.

It has not always been so. Until the 1970s, Americans frequently encountered water that had an unappetizing look and taste, and that occasionally made us sick because of bacteria or, worse, chemicals that might cause cancers and death. Many of our rivers and aquifers that serve as our sources of drinking water were contaminated with sewage and industrial wastes, and the states were unable or unwilling to require the municipalities and industries to pretreat their waste waters before discharging them into those water sources. There was no Environmental Protection Agency to do that for us.

This and other reckless uses of our surface and ground waters and air led to public outcry during the 1960s against the desecration of our environment, which in turn led to the 1970 creation of the Environmental Protection Agency by then-President Richard Nixon--a Republican, no less--and the enactment of the Federal Clean Water Act, the Safe Drinking Water Act, and other laws designed to protect our environment and public health. We are far better off today than in the 1960s because of those laws and the EPA regulations that implemented them.

In June, the EPA and the U.S. Army Corps of Engineers issued new regulations commonly referred to as the Clean Water Rule. The Rule more specifically defines the water bodies that constitute "waters of the United States" subject to regulation by those agencies. It was made necessary because several decisions of the U.S. Supreme Court made it difficult, without further clarification, for the agencies, developers, farmers and others to obtain a timely, consistent and predictable determination of the water bodies or wetland areas subject to regulation. The Clean Water Rule attempts to make that clarification.

However, the EPA has become a favorite target for certain politicians and their contributors who generally oppose any kind of regulation except those affecting our most private and personal activities, and they are making the Clean Water Rule a political campaign issue. That includes U.S. Senator Tom Cotton and U.S. Representative Rick Crawford, both of whom have published op-ed pieces attacking the Rule, and Attorney General Leslie Rutledge, who files suit against any decision the EPA makes that potentially affects Arkansas, regardless of whether the Arkansas Department of Environmental Quality asks her to do so or not.

These politicians are not criticizing the Clean Water Rule on its scientific and environmental merits, but on completely false claims of EPA's "desire to regulate nearly every drop of water in the United States," to quote Cotton.

For example, Cotton's op-ed article in the Nov. 7 edition of the Arkansas Democrat-Gazette hyperbolically states that the Rule "will allow the EPA to dictate everything from when Arkansas farmers can plant their crops to how often they can run a tractor. They could even regulate mud puddles on family farms." He added that "any landowner in Arkansas ... could face federal criminal charges for disturbing [a small drainage] ditch in any way." These statements are simply false, or, to use an Arkansas farmer's words, "pure BS."

The best way to poison anything in Arkansas is to link it to President Obama, and Senator Cotton doesn't miss the opportunity to do that by concluding his article with the admonition that we "don't need President Obama's EPA to tell us what to do and not do with mud puddles on our property."

Attorney General Rutledge contributed her bit of exaggeration about the Clean Water Rule in testimony to a Senate committee in Washington in March. She reportedly pointed to a thick stack of paper and testified that "If you are a farmer in Arkansas trying to determine whether or not one of your fields would fall under this proposed rule, you would look to this," adding, "Nearly every farmer in Arkansas would have to obtain legal counsel to determine whether or not a field on their land falls under this EPA proposed rule."

It is not clear what Rutledge was referring to. The complete text of the regulations included in the Rule cover only 23 pages in the Federal Register, which is short by comparison to many regulations, and certainly not a thick stack. Only a few pages relate to farmers, mostly to clarify that the Rule exempts agricultural operations.

More important, Cotton, Crawford and Rutledge have apparently not even read the Clean Water Rule. The Rule, in Part 401 (general definitions), specifically provides that ditches such as those used on and in farms, artificially irrigated areas, farm, stock and irrigation ponds, and "puddles" are not "waters of the United States," and are therefore not regulated.

Furthermore, the preamble to the Rule specifically explains that it not only maintains the current statutory exemptions, but "expands regulatory exclusions from the definition of 'waters of the United States' to make clear that it does not add any additional permitting requirements on agriculture." If Cotton, Crawford and Rutledge have read the Rule, they are deliberately misrepresenting it.

According to the Arkansas Department of Environmental Quality, some 40 percent of Arkansas' rivers and streams and over 30 percent of our lakes do not meet minimal water quality standards, in part due to agricultural and municipal runoff. Cotton, Crawford and Rutledge are willing to misrepresent the contents of the Clean Water Rule for their political gain when a large percentage of our rivers, streams and lakes--sources of our drinking water--are impaired and would benefit from the Rule.

By doing so, Cotton, Crawford and Rutledge ignore the lessons of the past regarding the contamination of our water and air and sacrifice the public environmental and health benefits that have been demonstrated through scientific analysis to be gained by the Rule.

Richard H. Mays is a Heber Springs attorney whose practice includes environmental law.

Editorial on 11/29/2015

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