Will We Kiss The Dream Goodbye?
July 19, 2000
Richard A. Halpern
“I believe there is another agenda here at work. The issue isn’t clean water, it is the federal regulation of private lands…” — Sen. Gordon Smith (R-OR) before the Senate Subcommittee on Fisheries, Wildlife and Water, Committee on Environment and Public Works, March 23, 2000
In direct defiance of an act of Congress, and over the objections of governors, municipalities, and almost everyone else in America who uses water, Carol Browner’s EPA has published new Clean Water Act regulations that—if implemented in 2001, as planned—will have economic repercussions that make Alan Greenspan’s micro-management of the money supply seem like child’s play.
The rule, as she has crafted it, has little to do with clean water. Under the pretense of “finishing the job of cleaning up America’s waters,” it will, in fact, give the federal government de facto power over land use on a national scale—able to reduce or even eliminate activities it deems unfavorable to water quality without developing a sound scientific rationale. Someday, in the not too distant future, we may be playing “Mother, may I,” with Ms. Browner and her successors, and they may be telling us where we may live, how much electricity we may generate, what kind of car we can drive and how far, how much food we may raise, and how and where we may grow it. It would be difficult to overstate the scope and perfidy of this rule. The Sierra Club, and the NRDC are, predictably, joyous collaborators in this assault on American freedoms and lifestyles. They know the new rule is the best arrow they have ever had in their quiver.
The potential for mischief in this rule, known as “TMDLs” (for Total Maximum Daily Loads) so troubled committees of the House of Representatives that after attempting, for the best part of a year, to reason with the EPA, a bipartisan majority gave up and voted overwhelmingly to deny funding for final stages of the rule’s development.
With the luck, or lack of it, that has dogged this Republican Congress, however, in their haste and passion to do in the rule, the drafters of its death warrant failed to take into account the extraordinary craftiness of Ms. Browner’s boss. The rule-killing language was attached as a rider to an urgently needed, and, therefore, veto-proof appropriations bill. But in choosing their words, the lawmakers erred. Like Bartholomew, in them there was no guile, so they did not anticipate it in their adversary. In plain language, they wrote plainly what they meant: “None of the funds made available for fiscal years 2000 and 2001 for the Environmental Protection Agency may be used to make a final determination on or implement any new rule …[c]oncerning Total Maximum Daily Load[s], published in the Federal Register on August 23, 1999.”
Before the nation could celebrate its Declaration of Independence, at least one last time, the White House began saying openly on July 3rd that the President had calculated, and he had reckoned that if he waited to sign the appropriations bill until the last available minute, Ms. Browner would have time to finalize and sign the rule before he signed the bill containing the poison pill forbidding its completion. Having already been signed, the rule would then be an old rule when he signed the bill, not a “new rule,” and therefore not subject to the rider. And that is what they did.
The Administration’s willingness to give Congress “a tremendous thumb in the eye,” as Sen. Tim Hutchinson (R-Ark) described it—Republicans and Democrats alike—is another measure of how critical the rule is, not only to Ms. Browner, but to the environmental groups that sued 35 states and the District of Columbia in federal court to provide the pretext for the EPA to develop the rule.
Arcane though it may be, the TMDL rule is most the important water regulation since the 1972 Clean Water itself, and it will radically change the rules of engagement in the struggle for America’s future. By publishing the rule, the EPA institutionalizes an extreme environmentalist doctrine dubbed “a presumption of pollution” in 1972 by James Buckley, then senator from New York, during the Clean Water Act debate. Under the “presumption of pollution” all human activity is a “disturbance” of the “natural” ecosystem, and it is assumed, as New York Times science writer William Stevens observed, that “change wrought by mankind ultimately has a net negative impact on the long-term health of the environment.” In other words, everything we humans do is “pollution.” It follows quite easily, then, that the Clean Water’s Act’s stated purpose, “to restore and maintain” the “integrity of the Nation’s waters,” means returning our waters to a condition unsullied by human activity. The logic of this approach is inexorable, and, in fact, a TMDL under development for the Indian River, Indian River Bay and Rehoboth Bay in Delaware, calls for all wastewater treatment plant and industrial discharges to be “eliminated systematically,” and nutrient runoff to be reduced as much as 85 percent. What and who will be next?
The “total maximum daily load” is the amount of a substance a body of water can tolerate on a daily basis and still meet state water quality standards. If you want pure water, the premise goes, TMDLs provide five easy steps: 1) establish standards for how the water is supposed to be, 2) identify which waters don’t meet them, 3) figure out what substance is causing the problem, 4) decide how much of the substance is tolerable on a daily basis, 5) trace the excess to its sources and eliminate either the excess or the sources—whatever is necessary to achieve the desired outcome—the restoration of “integrity” to the nation’s waters.
It sounds simple—in a reductionist sort of way—but for almost 30 years the TMDL provision has been gathering dust in a corner of the EPA’s attic. No one wanted to rub the lamp, because no one wanted to deal with the genie inside. How do we agree on a “desired outcome?” At what point is “integrity” restored? To be credible, TMDLs must establish with authority so-called “natural background levels” in the water of innumerable substances, accurately depict “natural background conditions,” taking into account the normal variations of flow and temperature, and an uncertain number of other parameters, the overwhelming majority of which we are only dimly aware—if aware at all. Any attempt to establish a “total maximum daily load” acceptable for regulatory decisions affecting the economy of a watershed like the Mississippi Valley and the lifestyles of its people would, until now, have had to be supported by high-quality, real-world monitoring data collected over lengthy periods of time, measuring many parameters, and by historical data, as well, recoverable only through on-site geological and hydrological investigation. To make matters more complicated, as any competent biologist knows, no two sites in the natural world are identical or even truly comparable. Even worse, no single water body is exactly like itself for two miles, two years, two months, even two days in a row—there are too many variables. All natural systems are irritatingly unique, and they are all in constant flux.
As became all too clear, during twelve congressional hearings on the rule, the EPA has no credible data. The agency boldly proclaims, with the press cravenly echoing, that 40 percent of America’s waters are unacceptably polluted, and that 218 million Americans—nearly 80 percent of the population—live within 10 miles of polluted waters. But the reality is, they have no clue. They are making it up. The EPA’s claims are based on the biannual water quality report each state must submit to the federal government under the Clean Water Act. But the states themselves, in a survey conducted by the GAO for a House committee, say their water quality reports are a sham. With one or two exceptions, they are based on outdated assessments, anecdotal evidence and random observations—not scientific sampling.
Attempting to fight off the rulemaking, the Society of American Foresters dug deep into data the EPA sent to Congress cataloging silviculture’s sins against water quality. What they found was a miasma of willful misrepresentation and misinformation. Of 1,040 waterbodies listed by EPA as impaired by forestry, only 84 could be considered even possible casualties. Nearly half were not even named in current state lists. Another 37 percent were admittedly listed using inadequate or outdated data. Eager to benefit from EPA’s programs, “Florida had claimed ‘silvicultural impairment’ of the Everglades, Sarasota Bay, and the Myakka River—where silviculture is virtually non-existent,” the society reported.
Arkansas, Florida, Mississippi, and Oklahoma acknowledged they had “padded” their lists—some with specific encouragement from the EPA. Independent testimony suggests that the EPA routinely colludes with the states to use questionable methods and dubious data to list so-called “impaired waters” in need of remediation.
The states’ water quality standards themselves—the cornerstone of the TMDL process—are mostly “wish lists,” established “without much scientific analysis,” the Association of Metropolitan Sewerage Agencies told a Senate subcommittee in March. Without credible water quality standards, there are no norms. Without norms, it’s awfully hard to recognize deviations from them. As well-known marine scientist and nitrogen-reduction advocate, Dr. Nancy Rabalais, told a 1997 conference: “I don’t know what a normal amount of nitrogen is.” We know we don’t want dead seas in the Great Lakes, we don’t want to eat mercury-laden fish, and we don’t want the Cuyahoga River catching fire, but beyond that we really don’t have much of a scientifically-defensible clue.
Without the “presumption of pollution” principle, the lack of sound science kept TMDLs in deep storage. With it, the EPA’s presumption is likely to be unbounded. Each land use, each human activity can be assigned a default quantum of pollution. Watersheds may be declared “impaired” on the basis of “historical adjacent land uses,” plans to remediated these “impairments” will be predicated on changes in or limitations to these land uses. If all practicable steps are taken without achieving the EPA’s or the Sierra Club’s desired outcomes, some human activities—as in the Delaware example—may have to be eliminated.
In early June, Ms. Browner demonstrated her commitment to using the water quality issue to impose federal land use controls on the states by insisting that the signatories of the Chesapeake Bay Program agree to numeric goals for restricting development in the Bay’s watershed as a pre-condition to EPA approval. The governors of Virginia, Pennsylvania, and Maryland have, in fact, agreed to “permanently remove from development” 20 percent of the land area in the watershed by 2010, and, by 2012, to “reduce the rate of harmful sprawl development of forest and agricultural land in the Chesapeake Bay watershed by 30 percent.” These numeric goals are arbitrary, unconnected to actual water quality conditions in the Bay, and, of course, entirely unsupported by meaningful science.
Even more chillingly, the Clinton Administration is waiting to implement a fully developed plan to use TMDLs to permanently retire at least 5 million acres of crop land in the Mississippi Valley, and to reduce crop production further by forcing the region’s farmers to restrict use of nitrogen fertilizer, basin-wide, by at least 20 percent.
In house, the EPA’s new rule has been known for years as “Too Many Damn Lawyers.” Indeed, the new rule was so completely discredited in public comments and testimony before a dozen Congressional hearings—by the U.S. Departments of Agriculture and Defense, the National Governors’ Association; the National Association of Conservation Districts; the National Urban League, municipal, regional, state and interstate wastewater authorities; power companies, the mining industry, forestry and agricultural organizations, and finally by the legislators themselves—that the Administration’s insistence on proceeding in utter disregard of the record will likely precipitate an avalanche of litigation from which no one and nothing—least of all the environment—will benefit. The damages, if common sense and legitimate demands for sound science do not prevail, may be immense and lasting.
When President Clinton devised his stratagem for frustrating the Congress’s intent to kill the TMDL rule, neither the administration nor its activist clients saw any need to be discreet as they placed their thumbs in the Congressional eye: “We’re trying to render the rider meaningless,” White House spokesman Jake Siewer told a reporter from the Philadelphia Inquirer. “This should serve as a lesson to Congress that they can’t pass anti-environmental riders and get away with it,” said Ed Hopkins, senior representative of the Sierra Club.
In the end, the question is: who is running the place? The elected representatives of the people or the Sierra Club. Apparently, it’s the Sierra Club. Two years ago, the Wall Street Journal lamented the Clinton Administration’s “endless and imaginative expansion of its powers and privileges.” And asked, “Are there any rules of the political game that this administration feels obliged to play by?”
If it is, thus, patently obvious that the executive branch can remake the American economy and completely refashion Americans’ lifestyles not only without consulting Congress, but in direct contradiction to its expressed wishes, it is surely time for Congress to reconsider its wholesale delegations of power under the Clean Water Act and similar statues to the executive and its army of bureaucrats. Let us hope the courts will help them.
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