Critics question data used in rule replacing Obama-era waterway protections

Critics say the Environmental Protection Agency’s (EPA) water policy unveiled Thursday is one of the biggest rollbacks to water policy in decades, but it’s tough to know the extent of its impact because of challenges that come with mapping America’s waterways.

“I’ve never seen an EPA regulation so utterly divorced from the facts and so apparently uninterested in developing them,” said Jon Devine, the Natural Resources Defense Council’s director of federal water policy. 

The new rule limits the small streams and waterbodies covered by the Clean Water Act, raising fears that an increased amount of pesticides and other industrial chemicals will be able to enter streams, wetlands and underground water sources. 

More than 18 percent of streams that flow because of rainfall or snowmelt and more than half of U.S. wetlands could be affected, according to data that was part of a 2017 slideshow put together by the EPA and Army Corps of Engineers staff and obtained by E&E News in 2018. 

However, agency Administrator Andrew Wheeler said while announcing the new regulation that “there are no data or tools that can accurately map or quantify the scope of waters of the United States for the agency’s regulatory purposes” or to compare the new rule to a since-repealed Obama administration regulation.

But critics question how the administration could pen such a rule without having the proper information.

“How can you promulgate a rule when you don’t know what the impacts are going to be?”  House Transportation and Infrastructure Committee Chairman Peter DeFazio (D-Ore.) told reporters on a press call Thursday. 

He also criticized the lack of public information in a December letter to Wheeler, writing: “Your repeated refusal to publicly quantify the scope of waters that would lose existing Clean Water protection under the Trump Dirty Water Rule is unreasonable, as the American public and affected stakeholders are deprived of any information on how their lives and livelihoods will be affected by this action.”

Devine agreed, saying that if the agency doesn’t know what the effects of its rule will be, “the right answer is not to barrel forward and put out that rule, it’s that they should have taken the time they needed to actually analyze the impacts.”

He specifically pointed to the National Hydrography Dataset and National Wetlands Inventory as examples of some data mapping the nation’s waters, but said it’s likely to be an underestimate of how widespread they are.

“Both of those provide at least a starting point for assessing the impacts of this rule and in many respects would be a conservative assessment or could lead to a conservative estimate,” he said. 

Meanwhile, the EPA recently released a statement critical of the databases highlighted by Devine, saying that the National Hydrography Dataset only differentiates between two types of waterways in “very limited portions of the country” and that the National Wetlands Inventory has “errors of omission and commission.”

The agency said that any attempts to quantify the changes in scope “are far too inaccurate and speculative to be meaningful.”

“While this Administration agrees that the current data and tools are insufficient, we are committed to supporting the development and improvement of the technology needed to map the nation’s aquatic resources,” it added.