Water runs downhill and, if polluted, it carries contamination with it to larger waterways. Pollution in small bodies of water – or even in dry gullies that flow only when it rains – impacts the quality of water in larger bodies downstream.
Many clean water advocates, including those trying to protect Alabama’s 132,000 miles of waterways, think that rationale ought to be enough reason to include small river tributaries, headwaters and wetlands under the federal Clean Water Act. That act protects the nation’s “navigable waters.”
The definition of navigable waters, however, has always been up in the air, and the U.S. Supreme Court asked the EPA to clarify the issue. In 2015, after a years-long rulemaking process, the EPA under President Barack Obama came up with what’s called the waters of the U.S. (WOTUS) rule, covering not just waters navigable by ship or boat, but also upstream tributaries, headwaters and wetlands.
Large business, industries and other interests – including the Alabama Farmers Federation – opposed that rule, saying the nation’s federally regulated waters should include only major, perennial streams and rivers. Jurisdiction over intermittent, ephemeral, seasonal waters should be left to the states, opponents of WOTUS contended.
Research Versus Trump’s Order
The EPA and U.S. Army Corps of Engineers spent years compiling scientific evidence and public opinion in an attempt to clarify how far the federal government’s regulatory jurisdiction extended.
President Donald Trump, less than two months into office, issued an executive order starting the process to rescind the WOTUS rule. The rule had been tied up in court since 2015. Now it could be overturned as the result of a directive EPA Administrator Scott Pruitt signed June 27, which allowed 30 days for public comment.
“The EPA and the Corps of Engineers spent an enormous effort to clarify what is covered by the Clean Water Act and its amendments,” according to Randy Haddock, field director of the Cahaba River Society, one of many environmental groups that support the rule. “The WOTUS rule basically acknowledges that water runs downhill.”
Cahaba River Society Executive Director Beth Stewart said, “Past court cases called into question whether you can freely discharge pollutants into small tributaries with no oversight whatsoever. Confusion was created – waters muddied, so to speak – that the WOTUS rule seeks to clear up. Now Pruitt is trying to undo the rule with the stroke of a pen and too short a time for people to provide comment on it.”
What’s at risk, she said, is the clean drinking water of 117 million Americans, the well-being of plant and animal species, and the protection of critical habitats.
The Alabama Rivers Alliance, which includes the Cahaba River Society, and other organizations asked the public to pressure the EPA to extend the comment period.
The WOTUS rule was instituted after a several-month comment period. A report from EPA’s Scientific Advisory Board found the science behind the rule to be sound and it to have a real impact on human health. Any new rule would have to go through the same process as Obama’s did and would be expected to be quickly challenged in court.
Stewart said the Trump-Pruitt effort “completely ignores not just what science tells us, but also what’s just obvious as to where our water comes from and what we need to do to keep it clean and healthy for people to be drinking and playing in.”
No Clean Water Rules for Part of Cahaba?
The Clean Water Act’s implementation often has included smaller upstream waters.
“A narrowed WOTUS rule might cover the Cahaba River, a major source of drinking water for residents of Jefferson and Shelby counties, only as far as the Caldwell Mill Road Bridge – well below drinking water intakes,” Haddock said. “There are wastewater treatment plants upstream from there. Would water quality standards only apply after the water reaches Caldwell Mill Road?”
Stretches of the Cahaba’s main channel go dry almost every year near Trussville, including a three-month period during the 2016 drought, Stewart said. That’s near the site where a now-closed chicken processing plant dumped poorly treated poultry waste into a small, seasonal, unnamed creek.
The pollution eventually went past Camp Coleman, for years preventing Girl Scouts there from swimming. When it reached the Cahaba, it turned the river a grayish color and fueled algae blooms, starving the water of oxygen before it entered drinking water intake pipes. Multiple environmental groups brought a lawsuit under the Clean Water Act that halted the pollution in 2004.
Sources of pollution in streams are varied, including acid runoff from coal mines near rivers, agricultural runoff from farms and garbage dumped into seasonally dry ditches. But, Stewart said, the primary threat to the rivers near Birmingham is sediment from storm water runoff.
“It’s speculative, but if the rule is overturned as expected, it’s possible cities on the upper Cahaba watershed might not have to manage runoff from roofs, pavement and construction sites beyond what’s in their local ordinances,” she said.
Birmingham Water Works’ View
The Cahaba and the Black Warrior rivers provide water to the Birmingham Water Works Board to process and deliver to its 195,000 customers, 91 percent of them in Jefferson County. According to the Southern Environmental Law Center, isolated wetlands and 54 percent of the stream miles that supply water for public drinking water systems for Alabama would be threatened if the WOTUS rule were rescinded.
Darryl Jones, BWWB assistant general manager of operations and technical services, is keeping an eye on the debate.
“The positive part of the Obama policy, if it isn’t overturned, would be to keep pollution out of smaller streams that go into larger ones that we get water from for treatment,” Jones said. “The less contamination that is in the source water, the less processing we need to do on the treatment side to get clean, healthy drinking water.”
He said, “You wouldn’t support a business that was allowed to discharge some contaminants or allow runoff that would eventually affect your water quality. But you as an individual have no say in the matter, so you sue the water utility, and we get the burden to make it clean. We’re at the mercy of what somebody does upstream. We don’t want to see streams and rivers flow like chocolate milk after a flooding rain.”
The issue is complicated, Jones said. “There are some political groups that won’t do anything to hold such a business accountable. Then there’s the other extreme of people who don’t want anything going into the water. So there’s a balance that has to be in place, but if you want to discharge (a contaminant), you’ve got to get a permit and treat it so it doesn’t become a problem.”
WOTUS Opponents: ‘Regulatory Overreach’
The Business Council of Alabama is one of the groups that favor rescinding the WOTUS rule. BCA President and CEO William J. Canary said in a statement, “The new rule was wrong, complex and vague, and can be the basis for expensive and punishing federal lawsuits against private property owners who are simply trying to use his or her own land.”
The Alabama Farmers Federation is among others that want the rule overturned because of its “regulatory overreach.” Its national legislative programs director, Mitt Walker, said the organization believed the WOTUS rule “would expand EPA’s regulation of private lands, making common farming and forestry practices subject to permits and large fines.”
It’s hard to buck the anti-WOTUS lobby in Alabama. Even Democratic U.S. Rep. Terri Sewell is going along with the Trump-Pruitt environmental efforts. In January, she joined all the Alabama Republican members of the House of Representatives in voting for a joint resolution that opposed the WOTUS rule.
In words that echoed the ALFA statement, Sewell’s office stated, “The strength of Alabama farms and the stability of Alabama farmers continues to be a top concern for Congresswoman Sewell.”
The state of Alabama weighed in on the issue, with Attorney General Steve Marshall joining 21 other state attorneys general in praising efforts to repeal the rule. Their joint statement said the rule “unlawfully impinges on the states’ traditional role as the primary regulators of land and water resources.”
Budget Straits Limit State Oversight
Alabama’s dire state budget straits, however, mean state regulators don’t have the funds to play much of a role, according to Keith Johnston, managing attorney for SELC’s Birmingham office.
“The Trump Administration is trying to drastically cut EPA funding while pushing more regulatory authority back to the states” Johnston said. “In our region, at least, states have bad track records of environmental protection and little money to implement environmental programs. Giving overwhelming responsibilities to the states to protect the environment thwarts the intent of federal laws and ensures that the environment will suffer.”
The Alabama Department of Environmental Management is already operating on a shoestring budget and for several years has depended on federal money from the EPA as a backstop for funding and services when the state can’t or refuses to protect the environment, he said.
The EPA is facing a major cut in its own funding for the next fiscal year, which Johnston said “will impede state and federal programs.”
The Supreme Court will hear arguments Oct. 11 on whether a federal district or appeals court has jurisdiction over the WOTUS litigation. Litigation over how extensively to define WOTUS likely will return to the Supreme Court after the jurisdictional issue is resolved, Johnston said.
“The Clean Water Act was meant to protect and restore water resources in our country,” Johnston contends. “This should include the smaller streams and wetlands that provide the lifeblood for our larger water bodies.”
The definition of “navigable waters” was narrowed as the Supreme Court became more conservative in recent years, but within that bloc Justices Anthony Kennedy and Antonin Scalia offered differing interpretations. Ripples from those differences continue to cloud the issue.
Scalia, in an opinion endorsed in Trump’s executive order, held that WOTUS should include only “relatively permanent standing or flowing bodies of water” and wetlands with a “continuous surface connection to bodies that are (WOTUS) in their own right.”
Kennedy, however, held a broader view, writing that a wetlands would be under EPA protection if “a significant nexus” to navigable waters existed and strongly affected “the chemical, physical, and biological integrity of other covered waters.” Wetlands that have a “speculative or insubstantial” effect on water quality are not protected by federal statute, he said.
Kennedy’s argument was used by McWane Cast Iron Pipe Co. when its north Avondale facility was accused under the Clean Water Act of knowingly discharging untreated wastewater into Avondale Creek, according to Black Warrior Riverkeeper Nelson Brooke. McWane attorneys claimed federal prosecutors did not prove a “significant nexus” existed between the creek, the Locust Fork and ultimately the Black Warrior River.
Eventually, McWane pleaded guilty to criminal felony charges in 2009, paid a $4 million fine and saw two high-level employees pay personal fines and be sentenced to years of probation. The corporation also was required to perform a community service project that included construction of a park in the area.
“We will continue to challenge pollution issues whether the WOTUS rule is rescinded or not,” Brooke said. “But we believe the rule provides clarity for everyone – the regulated community, regulators and advocates like us – as to what waters are covered by the CWA.”
He added, “If we go back, it creates reckless uncertainty and huge inefficiencies from permitting to regulating to legal challenges. EPA Administrator Scott Pruitt is trying to let a lot of polluters off the hook, but they’re still going to be challenged down the line if they cause pollution problems.”
See the Southern Environmental Law Center’s Map of Surface Intakes for Drinking Water in Alabama