15 May 2017

9 minute read

North America

The US Environmental Protection Agency (EPA) is under pressure from all sides as regulations are reviewed: President Donald Trump has proposed budget cuts the agency's funding by a third and several Republicans have introduced a bill into the House of Representatives to get rid of the agency completely on 31 December 2018.

Meanwhile, on 31 January 2017, President Trump signed Executive Order 13777 requiring a review of all current regulations, examining how they might be replaced or modified. Repealing regulations wholesale is also under consideration. And on 30 April, nine of the 18 members of the EPA’s Board of Scientific Counselors – the advisory committee that reviews the EPA’s programmes, covering everything from chemical safety to air pollution to fracking – were told that their contracts were not being renewed. “Today I was Trumped,” said one of them on being given the news.

Public comments about the regulatory burden caused by the proposed reforms will be accepted until 15 May on the EPA’s website, under docket number EPA-HQ-OA-2017-0190. Almost 5,000 comments have been registered, many anonymously, by individuals requesting that regulations and funding for the EPA remain in place. As well as listing the benefits of the EPA, people leaving comments reference childhood memories of dirty air and water from the days before EPA regulations were introduced across the US.

The agency was formed in 1970, with Republican President Richard Nixon signing the paperwork to formalise its authority. Over the next few years, the EPA focused on reducing pollution, a task state and local agencies had grappled with throughout the 1960s. In 1969, pollution on the Cuyahoga River caught fire near the heavily industrialised steel city of Cleveland, Ohio. The dramatic photos made national news and Americans demanded a stronger response to the problem.

Linda Brownson was born in Cleveland and was a child when the fire occurred. She didn’t get close enough to see the flames, but she remembers the smoke. The burning river was not her only childhood memory marred by pollution. There were “no swimming” signs posted near rivers and along the shore of Lake Erie and she recalls the smell of the city as she drove through Cleveland to visit her grandmother. She left Cleveland for college and didn't return until 2007, when a conference she attended took place in the city.

“I was really struck by what a good job they did cleaning the lake and it didn’t have that smog,” says Ms Brownson. “I didn’t feel threatened by the environment... You have to wonder why folks thought it was OK to dump everything in the water.”

Ms Brownson now lives on a small farm in New Hampshire and is involved in local, state and national water protection programmes. One is the New Hampshire Association of Conservation Districts (NHACD); Ms Brownson is president of this association, which works to coordinate conservation activities across New Hampshire. One of the NHACD’s most recent projects has been to train people to be experts in nutrient management for the soil – and this programme was supported by 319 grant funds from the EPA.

As a result of the training, nutrient containment on farms has increased. The funding has been used to study nitrogen leaking from septic systems, the Great Bay Watershed Estuary and stream restoration programmes in New Hampshire. Brownson says the EPA funds made many of those projects possible. “Farmers are more trusting of the consevsation districts than they are of the EPA because we’re not regulators,” she says.

“We can easily work together as we have with all these projects,” says Ms Brownson. She would like to think that reducing the size and scope of the EPA could be achieved without damaging the environment, but she said she thinks a heavy regulatory hammer needs to be in place to ensure people obey the law. “When the Clean Water Act passed [in 1972], you could see how quickly the waters cleaned up,” she says. On the other hand, the EPA’s regulation regarding the Waters of the United States (WOTUS) Rule caused anxiety across the state, she said.

WOTUS is an attempt to clarify language in the Clean Water Act that has been under debate since a 2006 Supreme Court Case, Rapanos v. United States. Four of the judges argued in favor of defining “navigable waters” in a restrictive sense while four judges had a broader understanding of what the term meant. Justice Anthony Kennedy did not fully support either position. The case was remanded to the lower courts and the term “navigable waters” remains under contention.

In May 2015, President Barack Obama, the EPA and the Army Corps of Engineers introduced WOTUS as a way to define which rivers, streams, lakes and marshes fall under the jurisdiction of the EPA. WOTUS was an attempt to clarify what a “navigable waterway” is but the changes proposed by the EPA caused more uncertainty. Both houses of Congress immediately introduced bills to block WOTUS. Farmers questioned if the stream bed that was empty half of the year or if a puddle that formed in the middle of the field during heavy rains needed to be regulated. The unclear language caused many, including Ms Brownson, to consider WOTUS an overreach by the EPA.

Ms Brownson said they sat down with members of the EPA to discuss their concerns and suggested changes, but the proposed bill did not reflect those conversations. In December 2015, about four months after WOTUS was finalized, the Government Accountability Office ruled that the EPA violated federal law with a social media campaign urging the public to support WOTUS. WOTUS rule has been continuously challenged in court since. President Trump signed an Executive Order in February to repeal WOTUS. In April 2017, the US Supreme Court decided it would hear arguments regarding WOTUS before making a ruling on if challenges to WOTUS belong in federal courts or appeals courts. The rule remains stayed nationwide.

Scott Yager, environmental counsel for the National Cattlemen Beef Association (NCBA) says any beef farms in the US with more than 1,000 head of cattle need to get special permits from the EPA, but there are other regulations that govern smaller operations. Mr Yager is in favour of clean water, air and land, but most of the members of the NCBA meet goals through volunteer conservation programmes, and the US Department of Agriculture (USDA) provides financial and technical assistance for farmers and ranchers to implement conservation projects. Specifically, the USDA’s Natural Resources Conservation Service has helped farmers with technical advice and volunteer initiatives.

"It’s when permits are required that problems occur," says Mr Yager. Farmers worry about permits for concentrated animal feeding operations, pesticide use, even moving dirt. There is a list of all the regulations on the EPA website. Mr Yager says if implemented, WOTUS would define any water feature as a tributary that would be subject to regulation, even if it does not have water in it year-round. The rule would be ambiguous and would make it hard for farmers to tell what exactly was a water feature. Did an area of a field that flooded count as a tributary?

“We want clarity. We want regulatory clarity,” says Mr Yager. “It takes a while to get the permits. It takes money to do it. Cattle producers will usually hire a technical consultant to do it. It’s costly.”

The cost of the permits and the costs of complying with them is just the beginning. The time it takes to fill out the forms, says Mr Yager, is time farmers could spend on other tasks. “It makes it very appealing to not go through the process if you can avoid it. If you need a permit, make it easier to get,” he says, adding that states need more control over local regulations.

Denny Grinold, chairman of US Committee of Advisors to the Great Lakes Fishery Commission, has been fishing on the Great Lakes for 45 years. “I can’t imagine the Great Lakes without the EPA,” he says. He remembers when people were concerned about the raw sewage being dumped in the lakes and the phosphorus levels in the lake, which have declined over time. “In the mid '70s, if you were be out there at the right time, the lake would sparkle... It would be pretty void of fish. It’s happening in Lake Erie right now,” he says, explaining that the water is devoid of oxygen.

He sees the problem as runoff from the land – from farms, lawns and commercial property. The runoff, contaminated with agricultural chemicals, drains into the streams, then finds its way into rivers and finally into the lakes. Mr Grinold says he knows farmers in the region try to eliminate runoff and most of them are a credit to the industry for the work they’ve done to protect local water features, but some farmers had to be forced into making changes. He understands the concern of the farmers and the worry about restrictions, but he remembers a time before the era of EPA regulation, when the lakes were declared dead.

In 2014, an algae bloom on Lake Erie caused a tap water ban in parts of northern Ohio. Almost half a million people were told not to use their water supply for drinking, cooking or bathing. While algae blooms had occurred in previous years, this was the largest in the Great Lakes in recent history. Scientists claimed the algae was the result of nitrogen and phosphorous runoff from leaky septic tanks and farmland, combined with warmer weather. Smaller algae blooms have occurred each summer since and are expected again in 2017.

Dan Anderson, senior field claims representative at the Farm Bureau Financial Services at the University of Northern Iowa, said the EPA started with the bill that came to be known as the 1972 Clean Water Act. The EPA requires a farmer to hold a permit if he or she has direct access to a stream, but each state has some degree of flexibility interpreting the regulations. A farm with 500 animal units needs a manure-management plan detailing how much manure is created and where it’s going to be put, explains Mr Anderson.

How a farmer times the application of manure is crucial because the rules mean that if it rains on the field and manure leaks into the water system, the farm will be in breach of regulations. The manure has to be absorbed before it rains again. In the 1990s, when the regulations were introduced, the cost of moving manure around wasn’t worth it to farmers. Today, more farmers see the value of adding manure to fields, while a manure surplus can be sold to other farmers.

The EPA regulations typically allow states some flexibility to make sure regulations can work, but state laws have to be stricter than the EPA regulations, says Mr Anderson. If the EPA decides the state is not following guidelines, it can take away permitting controls from the state and control them nationally.

The EPA budget since 2000 has typically been between $7.5 billion and $8 billion – with record high budget of more than $10 billion in 2010 – and the agency employees between 15,000 and 17,000 people nationally. President Trump’s proposed budget would cut EPA funding by one-third (about $2.6 billion) in the largest proposed cut to any government agency. If approved by Congress, the Environmental Protection Agency’s budget would shrink to the lowest is has been in almost two decades.

Proposed cuts to the USDA would be about 25 per cent of the agency’s budget. Budget cuts for the State Department, public education, the Department of Housing and Urban Development – including the complete elimination of funds for Meals on Wheels – have also been proposed by the Trump administration. About $56 billion of the money saved would be earmarked for increases in four national security programmes.

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