In this episode, host Daniel Raimi talks with Ellen Gilinsky, the former associate deputy assistant administrator for water at EPA. An expert on historic water policies, Gilinsky elaborates on how ambiguities in the characterization of “Waters of the United States” (WOTUS) under the Clean Water Act have prompted persistent debates about how the law should be implemented and what types of water sources are covered. Gilinsky also discusses more recent policy developments, including the current administration’s push to redefine “navigable waters,” with implications that weaken the Obama-era Clean Water Rule. (Note that, in the time since the episode was recorded in March, EPA and the US Army Corps of Engineers have published an updated rule with the new definition in the Federal Register.)
- Ambiguities in the Clean Water Act prompt legal challenges: “[With] the 1972 Clean Water Act … they came up with these categories of Waters of the United States, but they didn't really define them. So over the years it's really been left to interpretation. For instance, [WOTUS] include traditionally navigable waters. Well, what does that mean? Does that mean a cruise ship has to sail on it, or does it mean you could take your kayak out? There is no definition. Similarly, it covers tributaries to these navigable waters. What's a tributary? Is it a little trickle? Is it a roaring river? We don't know … You can see why we ended up in court.” (3:42)
- Substantial impacts of replacing the Clean Water Rule: “[Trout Unlimited] found that there are six million miles of streams that flow only after a significant rainfall. So those six million miles would not be covered under [the new rule]. And they also found that 42 million acres of wetlands, which are half of the wetlands left in this country ... would be considered nonadjacent to a regulated water under the new rule. And therefore, you could do whatever you want to them without a permit. That's troublesome.” (21:06)
- Flawed benefit-cost analysis underlies recent rollback: “One of the first executive orders of the current president was to get rid of the Clean Water Rule … This administration went back on the same economic study that was done [in 2015], and they took out all the indirect benefits, but they kept the indirect costs. And so, no surprise, all of a sudden, the 2015 rule had more costs than benefits … It's agency-wide that they've been told not to look at indirect benefits. And that's how they're able to roll back a lot of the rules that were put forward in the last administration.” (28:42)
Top of the Stack
- Replenish: The Virtuous Cycle of Water and Prosperity by Sandra Postel
- Where the Crawdads Sing by Delia Owens
- Cadillac Desert by Marc Reisner
The Full Transcript
Daniel Raimi: Hello and welcome to Resources Radio, a weekly podcast from Resources for The Future. I'm your host, Daniel Raimi. This week, we talked Waters of the United States or WOTUS with Ellen Gilinsky, President of Ellen Gilinsky, LLC and former associate deputy assistant administrator for water at the US Environmental Protection Agency. Ellen is an expert on all things WOTUS, and I'll ask her to tell us why this term is so important for federal regulation of surface water, why it's so tricky to define, and how the Trump administration is seeking to change the definition to reduce regulation. If you're like me, and you know that WOTUS is really controversial and really important, but you're not sure why, then this is the podcast episode for you.
One quick production note: We recorded this episode back in March of this year and since our recording, the Trump administration has published its final rule in the Federal Register on April 21st. Stay with us.
Alright, Ellen Gilinsky, thank you so much for joining us today on Resources Radio. It's great to have you with us.
Ellen Gilinsky: I'm delighted to be here.
Daniel Raimi: So Ellen, we're going to talk today about something called the Waters of the United States, which is a very important term for federal water regulation in the United States. We're going to talk about what the term means, we're going to talk about its context, and we're going to talk about recent changes to the way it's being interpreted. But before we do that, can you tell us a little bit about your background and how you became interested and started working on environmental issues?
Ellen Gilinsky: I sure can. I grew up in the 60s and 70s when the environmental movement was just starting, and as all teenagers like to do, you want to be meaningful, I marched in the very first Earth Day and we gave dead fish to polluters along the Hackensack River in New Jersey. Probably another reason why I'm interested in the environment: Growing up in New Jersey, and we also took a field trip to a landfill in New Jersey and I saw all this pollution oozing into the Hudson River. So I was hooked, I knew I wanted to help the planet and I really dedicated my educational career and then my professional career to working on the environment and specifically water issues.
Daniel Raimi: Yeah, that makes sense. I mean those images I can certainly, no, I haven't seen images like them much in my lifetime, thankfully because...
Ellen Gilinsky: Which is a good thing.
Daniel Raimi: Exactly. Yeah, because of the work you and many others have done before. So let's get into talking about the Waters of the United States and the Clean Water Act. The term itself, Waters of the United States, which we'll probably refer to as WOTUS, plays a really important role in how EPA regulates water pollution under the 1972 Clean Water Act. Can you give us a sense of why that term is so important and how it is defined in the clean water act?
Ellen Gilinsky: Certainly. So it's just incredible how one little term has so much power, but the whole applicability of the Clean Water Act really depends on and applies to Waters of the United States, so it's really important what that means, because that's how all your permits are required, oil spill prevention and response, other cleanup programs, grant programs, both to public entities, but also just to the states. Their funding depends on this Waters of The US notion. So the ’72 Clean Water Act, they were starting off with something new. So they came up with these categories of Waters of The US but they didn't really define them. So over the years it's really been left to interpretation. For instance, Waters of The US include traditionally navigable waters. Well, what does that mean? Does that mean a cruise ship has to sail on it, or does it mean you could take your kayak out?
There is no definition. Similarly, it covers tributaries to these navigable waters. What's a tributary? Is it a little trickle? Is it a roaring river? We don't know. And another term, adjacent wetlands and waters: What does adjacent mean? Do you have to be touching it? Can you be six feet away like we're all doing these days? So those terms you can see are really open to interpretation. And then it also included interstate waters, territorial seas, impoundments. You can pretty much figure out what that is. And then also this notion of other isolated waters that have a significant nexus to the traditionally navigable waters. Totally undefined again. So you can see why we ended up in court.
Daniel Raimi: Yeah, for sure. So the next question I'd like to ask is, as I was doing some background reading to prepare for this podcast, and I'm obviously far from the expert here, but one of the things that it seemed as I was doing this reading is that, as you alluded to, there's been quite a bit of confusion over the years about what exactly was and was not included in Waters of the United States. So can you talk a little bit about that, and in particular, how the Obama administration's EPA sought to define the term in the rule that it published in 2015?
Ellen Gilinsky: Yes, I'd be glad to, since I was part of that administration, when we did this work. We were trying to clear up all this confusion I was talking to you about, all the court cases. Some court cases had contradictory opinions. So we didn't even know what we're supposed to do in terms of implementing this Waters of The US definition. So our goal was to clarify the definition by drawing basically indisputable lines that would make it clear what waters are regulated under the Clean Water Act, so we weren't spending our time in court or on lengthy field studies to determine was this water connected or not connected, but that we could agree on certain waters that were always jurisdictional.
So what we did was started out going to the science, which is always a good policy. And our Office of Research and Development at EPA did a review of the scientific evidence over 1000 published articles based on studies of streams and watersheds basically to show how watersheds are connected from the headwaters to the mouths of the rivers, where they dump into the ocean, and also connected with their floodplains, and the wetlands that surround them both connected on the surface but also in shallow groundwater, much like a human circulatory system with your capillaries and veins and arteries and lymph nodes, and everything's connected. That's the analogy we like to use.
Daniel Raimi: Great. And so that sort of clear definition that you and the administrations sought to develop, can you talk a little bit more about it and in particular what types of waters were included? And you've already mentioned some of the key terms, but if you could elaborate on that a little bit and then also maybe give us a sense of what about this definition generated controversy because, as we'll discuss in a few minutes, there's been quite a bit of controversy surrounding this definition.
Ellen Gilinsky: Absolutely, yes. So I talked about the different categories that are in the Clean Water Act, and some are pretty obvious like interstate waters and territorial seas and lakes and ponds. People know what that is. But EPA and the Corps, it was a joint rulemaking. What they focused on was to give more operational definitions of tributaries, of wetlands, of what adjacent is, based on science and also based on years of experience in delineating these areas, so that there'd be more certainty about what was covered and what wasn't. And in addition, the Corps of Engineers has multiple districts all over the country. And as happens when humans are making decisions, some districts made decisions differently than others. So it appeared in some areas of the country, that all of a sudden we were regulating more waters, whereas really in other parts of the country, those were already regulated, so there was an appearance in some areas that wow, all of a sudden, you're claiming jurisdiction over all these waters and getting in our business and you shouldn't be.
So let me just talk about two of the really controversial areas. One was defining tributaries of traditionally navigable waters. So before, tributaries was not defined, so you didn't know: How big did it have to be? Did it have to flow year-round? So we looked at what are the physical signs of flow, that when water is flowing, it carves channels. So if water isn't flowing that frequently, you're not going to have a channel, and maybe it's not that important to make it jurisdictional. So we defined a tributary as having a bad bank, an ordinary high watermark. Those are physical signs that anybody could go out and see. And we said that means they're part of the watershed system. So what happened was this did include some streams that we call ephemeral because they flow only after rainfall or snow melts. It ended up including some of those which are very important, especially out in the West, where those are your source of waters because in the summer, everything's dry. So you really depend on that rainfall.
Also seasonal streams, which are technically called intermittent. And then there's waters that flow year-round called perennial. Nobody was arguing that those shouldn't be covered, but we looked at the system rather than how many days a year it flows. And that's how we determined tributaries. Now, a byproduct of that is that a lot of ditches ended up becoming jurisdictional where maybe they weren't before, so the only ditches that were excluded were if they were constructed in an upland. So if a ditch went through a wetland or roadside ditches that intercepted other waters, those were included and that created a little controversy. Moving into wetlands a big issue was that wetlands and other waters that have to be adjacent. So we actually defined what adjacent meant, and it did not mean touching. Adjacent meant having a shallow subsurface or a surface connection to a water that was already jurisdictional.
So, if a river flooded over its banks and connected the floodplain, and there were wetlands in that flood plain, then those wetlands would be pulled in. If a lot of times you have low lying areas that are maybe a little bit away from a river, maybe even half a mile away from a river, but we all know them as the swamps, they have trees that can tolerate water. They provide a lot of important functions to control flooding and filter pollutants and provide wildlife habitat. So those were considered adjacent even though they weren't touching. They were connected by the water network. So those were two really important definitions that were included in the 2015 rule.
Daniel Raimi: Mm-hmm (affirmative). And can you give us a little bit more insight into how to think about how much that expanded the scope of what was subject to regulation under the Clean Water Act? You mentioned that there's a lot of uncertainty, right? And that different core jurisdictions might have been approaching those types of waters differently. But can you just elaborate on that a little bit more so we get a sense of scale in terms of how much of an expansion this was? Or like if we even have the data to answer that question.
Ellen Gilinsky: Yes, Daniel, I can, and again, this is an estimate, and it's actually pulled from the recesses of my past work, but we did look, and EPA and the Corps looked at: Is this an expansion of jurisdiction? And in some cases it wasn't because particular Corps districts were already considering all those, and unless they got sued, they could go on their merry way, and some areas weren't. So we estimated maybe a 5-15 percent increase in coverage for Clean Water Act programs based on implementation using these new definitions.
Daniel Raimi: Great. That's really helpful. So we've talked for the last few minutes about the Obama administration's rulemaking with regard to what is and what is not a water of the United States. Or can I even say that: “a water of the United States?”
Ellen Gilinsky: Yes.
Daniel Raimi: I should probably just say, Waters of the United States.
Ellen Gilinsky: Either works.
Daniel Raimi: Okay. So let's move on now to talking about what the current administration is doing. And as just a little bit of background—and please do correct any of this that I garble—the Trump administration, my understanding is, repealed the Obama era Clean Water Rule in December 2019 and has since finalized their own rule, which is called the Navigable Waters Protection Rule in January of 2020. Although the rule hasn't been published, I don't think yet in the Federal Register, in any case, can you give us a sense of what's different in the Trump administration's rulemaking relative to the Obama administration one that you've just described?
Ellen Gilinsky: Yes, Daniel, I certainly can, but first I just wanted to mention that that repeal rule has actually been appealed and is in the courts because, as with anything that gets done these days, immediately whatever side you're on, it's in the courts. And there was some discussion about whether it was legal or not the way the Trump administration repealed the 2015 rule. In any case, it wasn't uniformly being implemented across the country anyhow because of other lawsuits. So there's just been a lot of confusion, and there still is. But at any rate, when this Navigable Waters Rule is published, it will become effective and it does have some significant differences from not only the Obama era rule, but from the Clean Water Act itself. And it actually pulls back protections that were in the Clean Water Rule, which I think should trouble people because that Clean Water Rule, we've held it up as our guideposts for all these years.
So no change in the categories: the traditionally navigable waters, territorial seas, lakes, ponds, et cetera. But again, we're going to go to the tributaries and the wetlands, that's really where the controversy is. So, this new rule defines tributaries as a river stream or natural channel that contributes flow to downstream waters and it has to be free-flowing, perennial or intermittent, which is seasonal in a typical year. So right off the top, it just eliminated most of the headwater areas that are so important. It's where our stream network starts. It provides drinking water to many people for downstream purposes, so that's worrisome. And then also this idea, “typical year.” So in other words, if the stream doesn't flow in a typical year, you're not going to cover it. What's a typical year? Well, it's not defined in the rule, but the Trump administration did put out some guidance, which again, guidance is not really enforceable. It's guidance.
And it suggests that you might look at the past 20 to 30 years of flow data for a stream to determine if you're under a typical year or not. First of all, that requires a lot of research and time, which this administration criticized the last rule about and said, “we're going to make a clear rule.” That's not clear. And also what is a typical weather pattern in the last decade? There hasn't been one because we have changing weather patterns. We've had tremendous floods. We've had tremendous droughts. How do you figure out what is typical in that? It's very difficult. So many environmental groups, states, other wetland and stream scientists feel this is problematic and that this will eliminate some very important stream systems from falling under the Clean Water Act. And I just do want to cite some data here.
EPA and the Corps did an analysis before the 2015 rule to see how many streams flow all year, how many are intermittent, et cetera. It's an estimate because you have to do it from mapping and from hydrological data that the geological survey provides. But at that time we found that only 30 percent of streams nationwide are clearly perennial, free-flowing all year. So it's only certain that 30 percent of the streams will be covered. Now obviously it's going to be more than that because you're going to pull in some seasonal streams, but you're still starting with the certainty of only 30 percent. That is worrisome. Also, this definition of tributaries excludes ditches that might have a fairly significant flow and be important in the system because only ditches that used to be a tributary are included in this definition.
Daniel Raimi: So these would be like ditches along...
Ellen Gilinsky: Roadside ditches. Yes.
Daniel Raimi: During storm water events they would flow.
Ellen Gilinsky: Exactly. Yes, they would flow really a lot. That's a lot of information to take in. But now we have the wetlands issue. So this Navigable Waters Protection Rule also defines adjacent waters, so, wetlands adjacent to tributaries or navigable waters, and they define adjacent as you have to touch, physically touch. Not connected by water, not part of the system. If you're not touching, then you're not jurisdictional. That ignores the functions of wetlands that I was talking about before where you have low lying forests that have water up to the surface. They meet the scientific definition of wetland, and they're important for wildlife habitat. They're important for filtering, they're important for flooding, which is a real problem these days with our torrential rains and such. So this really limited a decrease in wetlands. And just to give you, I know you like data, so I have some for you.
Daniel Raimi: We're ready.
Ellen Gilinsky: And I'm quoting, this source is from Trout Unlimited. Trout Unlimited, it's got hunters and fisher people associated with it. They're not a typical green group, but they recognize the importance of these waters and wetlands, for hunting and fishing and wildlife and recreation and all of that. So they looked at the geological survey maps, and they found that there's six million miles of streams that flow only after a significant rainfall. So those six million miles would not be covered under these definitions. And they also found that 42 million acres of wetlands, which are half of the wetlands left in this country—we've already destroyed so many—but 42 million acres of wetlands, almost 50 percent would be considered nonadjacent to a regulated water under the new rule. And therefore, you could do whatever you want to them without a permit. That's troublesome.
I think that should be troublesome to anyone because we're not saying people can't use these areas. We're saying you just need a permit, and you need to minimize your environmental impact. So many are saying, including EPA's own scientific advisory board, that this new rule ignores the science and also many judicial opinions and really doesn't increase certainty because you still have to figure out what's a typical year, for instance.
Daniel Raimi: Right. One quick follow up on that wetlands question. We did an episode several weeks or maybe several months back with Lisa Mandle from the Natural Capital Project at Stanford University, and we talked about wetlands mitigation banking. So does the fact that one would not need to get a permit from the EPA to develop land on one of these wetlands that you're talking about, does that mean you wouldn't need to do the wetlands mitigation banking to offset that impact?
Ellen Gilinsky: That is absolutely correct. And that is why the mitigation bankers don't like this rule because it could put them out of business. Exactly.
Daniel Raimi: Really interesting. Okay. Let's keep going and I want to ask you two more questions this term, Waters of the United States. Can you tell us a little bit about what flexibility state governments might have with regard to regulating these types of waters? So for example, if the federal government is choosing not to regulate certain intermittent streams or certain wetlands, do states have the authority to kind of supplement what the federal government is doing?
Ellen Gilinsky: Great question Daniel. And there's no one answer to that. So before I was at EPA, I was actually a state environmental regulator in Virginia. And while I was in that position, we developed Virginia's wetland regulations. So, we are one of those states, along with our neighboring states of Maryland and Pennsylvania, North Carolina and some others, there's about half of the states in the country have their own rules defining what their waters and wetlands are. So, they're independent of the federal definition. But there are a lot of states, the other half, that don't have their own definition. So they rely on the federal definition of WOTUS. So if it's not covered federally, they can't come in and cover it as a state unless they go back and change their rules. And furthermore, some of those states also have rules that they can be no more strict than the federal regulations for any regulations: air, water, waste.
So people are saying, well that could be changed. Well sure it can, but that takes time, it takes money to do that. And meanwhile their waters are in jeopardy, so there's many states that are concerned. Arizona did a recent survey of how the states are feeling about this rule because they're concerned about it because they're one of those states that relies on the federal definition and they're thinking of doing their own rulemaking. 42 percent of states said the WOTUS rule will have a large impact on what waters are regulated in their state. So you know, they are looking at what they're going to do to solve this. And it bears mentioning that states are really strapped for cash and the budgets they have are not going to the environmental agencies—believe me—because there's so many other services that states are having to provide for their citizens.
Daniel Raimi: Right. And especially in these times when the economy is not in great shape, right? That'll be exacerbated. So last question now on WOTUS before we move to our Top of the Stack closing question, which is at RFF we're often thinking about the impacts to the environment that human activities cause, and then we're thinking about the benefits that those activities provide to society. Are there studies or other good evidence that you've seen that can help give us a sense of the benefits versus the costs of different approaches to defining WOTUS, right? You could imagine sort of trying to get every single droplet of water regulated, and that's probably going too far. But then obviously we don't want to just leave everything up to the market when it comes to water quality and environmental issues. So can you just talk a little bit about benefits and costs here and what evidence might be out there?
Ellen Gilinsky: Yes, absolutely. And I knew you were going to ask an economic question because you're Resources For The Future, and I'll get a plugin for all of you. Resources for The Future provides excellent economic studies and economic guidelines that most government agencies use as they evaluate the impacts of their rules and regulations. So it is a requirement for the federal government to do an extensive economic analysis for any new regulation. And it's reviewed by the Office of Management and Budget (OMB). And prior to this administration, the analysis was to include both direct and indirect costs and benefits. And you could also include monetized benefits, which are those that are easy to put a cash value to, but also non-monetized benefits like being out in nature or of wellbeing, those kinds of things as well. So the 2015 Clean Water Rule did have a very detailed economic analysis that was approved by OMB, and it showed much greater benefits than costs.
It provided an estimated $388-514 million annually of benefits. But those benefits included reducing flooding, filtering pollution, providing wildlife habitat, supporting hunting and fishing, and recharging groundwater. So not all of those had specific monetized benefits. You had to calculate it from referring to other studies. Those benefits significantly outweighed the costs of $162-279 million per year. And those costs were mainly to get your permits, to do the mitigation that you refer to earlier, and to reduce pollution to waterways through other pollution control means. So even the lowest estimate of the benefits exceeded the highest estimate of the costs. Pretty clear cut. So, one of the first executive orders of the current president was to get rid of this Clean Water Rule and go back and look at what the rules should be. And one of the reasons was that it was economically disastrous.
So this administration went back on the same economic study that was done before, and they took out all the indirect benefits, but they kept the indirect costs. And so no surprise, all of a sudden, the 2015 rule had more costs than benefits. And they also showed that this rule that they have just finalized—the Navigable Waters Protection Rule—was cost-effective. So there's been a lot of comment on the Trump policy because this is not just happening at EPA. It's agency-wide that they've been told not to look at indirect benefits. And that's how they're able to roll back a lot of the rules that were put forward in the last administration.
Daniel Raimi: Great. That's really, really helpful. And getting that sort of procedural administrative perspective is incredibly helpful. And it makes me think we should do a whole episode on sort of the Administrative Procedures Act.
Ellen Gilinsky: I think that would be great. And you've got experts at Resources For The Future who conduct these studies all the time. They know all the ins and outs.
Daniel Raimi: Yeah, I'll have to ask around the water cooler or the virtual water cooler and see what people think. Great. Well Ellen, thank you so much for telling us about WOTUS, helping us understand it, putting it in context. This has been fascinating and incredibly useful for me, and I'm sure for our listeners as well. So let's close out now with the last question that we ask all of our guests, which is: What's at the top of your literal or metaphorical reading stack? So something you've read or watched or heard recently that you would share with our audience. And I'll just do a really quick second of a recommendation that my colleague Margaret Walls recently made, which is to check out Cadillac Desert, the book by Marc Reisner about the American West and its water history and its water challenges. I'm more of an energy guy than a water guy in my own research, and so learning about water, this is a really great place for me to start and to get a sense of some of the history and it's absolutely fascinating.
Ellen Gilinsky: So now is a great time to be reading books. We all need that release reading fiction books, but then also the reality check reading nonfiction books. So I have one of each. So my friend Sandra Postel, who's a water expert recently published a book called Replenish: The Virtuous Cycle of Water and Prosperity. And this is not a super technical book, anybody could read it. And really through storytelling she shows the importance of protecting the water cycle and working with nature to restore nature and gives examples of where people have done that successfully and examples where people have interfered with the water cycle. Colorado River being a good example where there's very little of the Colorado River left, it's all piped in a million different places away from its source, but how you can restore these areas working with nature. So I just thought it was a fascinating book, I really commend it.
And then I do love fiction books and recently I read, Where The Crawdads Sing by Delia Owens, which you might be familiar with. I know many people are. And aside from the plot, it takes place in a coastal wetland in either North or South Carolina, I just forgot at this point. But it just is so evocative of the beauty and values of nature just come through on every page, and it really helps you understand why are we so worried about this definition of Waters of the US and why is it so darn important when you read things like that or when you go out in nature, which again, during this time, we should all be taking walks and enjoying nature and realizing how important it is to protect it.
Daniel Raimi: Absolutely. Well, very well said, and thank you so much for those recommendations and thank you again, Ellen, for joining us on Resources Radio and talking to us about Waters of the United States. We really appreciate it.
Ellen Gilinsky: Well, thank you so much for having me.
Daniel Raimi: You've been listening to Resources Radio. Thanks for tuning in. If you have a minute, we'd really appreciate you leaving us a rating or a comment on your podcast platform of choice. Also, feel free to send us your suggestions for future episodes. Resources Radio is a podcast from Resources for the Future. RFF is an independent, nonprofit research institution in Washington DC. Our mission is to improve environmental energy and natural resource decisions through impartial economic research and policy engagement. Learn more about us at rff.org.
The views expressed on this podcast are solely those of the participants. They do not necessarily represent the views of Resources for the Future, which does not take institutional positions on public policies. Resources Radio is produced by Elizabeth Wason with music by me, Daniel Raimi. Join us next week for another episode.