[Alternate Title: Why Is It So Hard to Tell the Damn Truth About the WOTUS? (Waters of the United States or Clean Water Rule of 2015)]
A Fair (Trigger) Warning
I clearly get it that most folks read fly fishing blogs because they love fly fishing; fly fishing is for many of us a powerful antidote to the often trying and downright (at times) shockingly disorderly world we live in today.
Now and again we see organizations claiming to represent fishers (and hunters, hikers, and other outdoors-folk) stretch the truth when it comes to the news; that’s fair game to a point – hyperbole is part the world we live in.
With regard to the WOTUS or Clean Water Rule, of late there’s not been just hyperbole, but a flood of misinformation (no pun intended) put forth by some of “the bigs” in outdoor advocacy; at best they’ve been pitching an incomplete story, at worst, they’ve been brazenly dishonest.
We’re going to look at three organizations, as examples, that focus on issues of vital interest to fly fishers – Trout Unlimited, the TRCP, and American Rivers, though the particular misrepresentation we’re calling bullshit is widespread and pervasive; these organizations should know better.
As a point of disclaimer – we’ve carried a lot of water here on Chi Wulff for Trout Unlimited (TU), the TRCP, and American Rivers (AR) over the years. I personally have friends in all three organizations, have donated time and money to all, and fully recognize they have done and will do a great deal for fly fishing and outdoors folk in the future. That said, sometimes you have to speak up when a friend steps over the line again and again.
If you don’t give a damn about a CWR/WOTUS reality check, or don’t want to hear your pet organization get called out, then move along, you’ll find nothing of interest below.
So What’s the Issue?
This recent email from a Montana TU chapter, titled “Do You Like Clean Water? Act Now!” is a prime example of what I’m talking about-
The public comment period, as extended, will now close on September 27th, 2017. The public can comment on a decision by the Trump administration to repeal a rule that would protect 60 percent of stream miles in American(sic). In June, the Environmental Protection Agency announced that it would begin the process of repealing the 2015 Clean Water Rule that protects headwater streams and water sources. As anglers, conservationists, irrigators, recreationalists, and, well, water drinkers, we need to defend the Clean Water Rule against repeal because it:
- Protects from pollution the cold, clean headwaters the account for roughly 50 percent of Montana’s trout streams.
- Includes exemptions to ensure that farmers and ranchers are not penalized for the water use that keeps them in business.
- Safeguards the drinking water sources of one in three Americans.
- Underpins the $7.1 billion outdoor recreation economy in Montana that generates 71,000 jobs and $286 million in state and local taxes. Ten million people visit Montana every year, in large degree, because of the state’s unparalleled natural amenities, especially cold, clean trout streams.
Without the Clean Water Rule everyone who cares and consumes clean water loses, except the industries that its repeal will allow to pollute our headwaters without regulation or penalty. We’ve had enough of that in Montana.
TU has crafted a beautiful web page saying it another way (emphasis mine) –
Whether you fish or just simply understand the value of clean water, there is no law more important than the Clean Water Act. In 2015, the EPA developed a rule that affirmed Clean Water Act protections for “intermittent and ephemeral streams.” Protections for these streams had been threatened by two splintered Supreme Court decisions in the 2000s. These streams —the headwaters of our nation’s rivers —provide us the fisheries we cherish and the clean drinking water we require. But this essential rule is now under threat of being revoked.
The TRCP site has a similar posting (emphasis mine) –
The basic needs of America’s world-class trout and waterfowl populations—healthy headwaters and wetlands—are about to be undermined, so sportsmen and women need to act now.
We’ve written before about how water is connected, and how pollution from small, diffuse sources can accumulate and create big problems downstream. Scientists and conservationists understand that this is a serious issue, but sportsmen and women are also well-informed—after all, we see the effects directly in our trout streams and from our duck blinds. Perhaps that’s why 83 percent of hunters and anglers, and overwhelmingly across party lines, support the application of Clean Water Act protections for smaller streams and wetlands.
However, the current administration has started the process to repeal a rule that helps the EPA and Army Corps of Engineers do exactly that.
Finalized in 2015, the Clean Water Rule clarifies Clean Water Act protections for 20 million acres of wetlands and thousands of miles of headwater streams—that’s 60 percent of the country’s flowing waters. If we can’t ensure that waters and wetlands are protected at the source, this endangers the future of beloved downstream land and waters.
So what in the hell could possibly be wrong or dishonest about saying we all just want clean water?
The Ongoing Lie Misrepresentation About the CWR/WOTUS
Our friends, these enthusiastic protectors of clean water, aren’t telling you one critical, perhaps the most vital, aspect of the Clean Water Rule story – the Clean Water Rule of 2015 was in effect for all of 42 days in 2015 (28 August 2015 through 8 October 2015) – before it was stayed 9 October 2015 by the Sixth Circuit.
TU, the TRCP, and AR (again, as examples) conveniently omit this reality, and infer overtly that the CWR/WOTUS is the law of the land today. But, in fact, it’s not.
So why was the CWR/WOTUS stayed?
Thirty states, yep – that’s THIRTY STATES, have filed CWR/WOTUS lawsuits against the EPA or Army Corps of Engineers (reference) as summarized in the image below, cut right out of the reference article. Astute readers will note that some of the states participating have within their borders some of the finest fly fishing waters on the planet: Alaska, Montana, Wyoming, Idaho, Colorado, New Mexico, Utah, Wisconsin, Michigan, and Tennessee to name a few.
From the article linked above, you can pull up the actual docs for each lawsuit and read the nitty gritty if you’re so inclined (or sleep deprived); the reference article names a large number of private (nongovernmental) party lawsuits filed as well.
KEY POINTS: The CWR/WOTUS was apparently so flawed that 3/5’s of the nation’s state governments deemed it necessary to delay its implementation urgently. You can wave any polling sample about the CWR/WOTUS from 2014 and 2015 you want, the states’ actions trump (no pun intended) public opinion polls – a majority of states don’t litigate the EPA unless there are serious and critical issues on the line.
The CWR/WOTUS was stayed over a year before the elections of November 2016; as much as TU, TRCP and AR (among many others) continue to insist that the current administration is entirely at fault for the current CWR/WOTUS woes, the legal wrestling match was already rolling well before.
Legal wrangling over the CWR/WOTUS has been protracted and complex, and will certainly continue to be so; here is one of the best summaries from earlier this year.
So What?…
Unfortunately it truly does matter, and the reason is blindingly simple. Clean water protections are the clearcut and coveted target, BUT the campaign to stop a “rogue administration” from doing “something stupid” is VASTLY DIFFERENT from the actual challenge facing clean water advocates now – that being the simple fact that 30 states and a plethora of private organizations find the WOTUS/Clean Water Rule unworkable (understatement of the year) as written.
Good Science, Truth, and Logical Fallacies Really Do Matter
All three organizations called out here have at some point recently implored that “good or sound science” be used when making management land and water management decisions that affect us all (i.e., TU here , TRCP here, AR here ).
As a scientist with post-doctoral training I couldn’t agree more, though it’s fair to point out that one should be damned careful what you wish for. Science has never been, and never will be, a consensus sport – it is a challenge, prove, re-prove, challenge again, prove again, etc. sport. Digging into the nitty gritty in the science world can be a forbidding intellectual chore and just damned hard, grind it out work, isn’t very sexy, and doesn’t often yield engaging Instagram posts. Cherry-picking studies and relying on media outlets, various pundits, and social media to interpret science for you will eventually bite you in the ass.
A vital corollary to using good science is telling the whole truth about issues, in this case specifically the CWR/WOTUS. Why have TU, the TRCP, and AR (again, as examples) chosen not to do so?
One might proffer that these three fine organizations, all based in the nation’s capital and quite politically active, led by some worthy men – Chris Wood at TU, Whit Fosburgh at TRCP, and Bob Irvin at AR – simply didn’t take the time to look into the matter thoughtfully and carefully. I’d truly love to believe this to be true, but it seems dauntingly unlikely.
A friend and mentor (vehement fly fisher, attorney, and damned successful businessman) offers a potentially more realistic if not cynical view, suggesting fundraising is much easier if you can create the perception of a crisis, and that, for example, not telling the whole CWR/WOTUS story allows these organizations to push their mutation from advocacy groups into political action committees at a faster rate (he points to this post by TU’s Chris Wood as evidence supporting his theory). Continued politicization in our greater culture (and fly fishing as well) hasn’t yielded much if anything of value thus far, quite the contrary in fact. I talk to fly fishers every week who insist they’re done donating to organizations that act more like PACs than roll-up-your-sleeves advocacy teams.
[As an aside, I continue to hear rumblings of a new fly fishing advocacy organization coming in 2018, one that will choose as a foundational principle to eschew politics and get back to the genuine basics of fish and fisheries, devoting all their time and resources there and not lobbying in political venues. How ironic, and how refreshing. ]
In conclusion, three things. One, by not telling the entire and accurate story, TU, the TRCP, and AR (again, as examples), have made an already daunting and complex process of enacting clean water protections even harder by injecting misinformation and political buffoonery into the mix. It’s time for everybody to tell the truth about this critical issue; these organizations have storied legacies, built on the shoulders of folks working hard to solve issues, not making solutions harder to attain – you guys can and must do better.
The CWR/WOTUS of 2015 was likely put on death row when 30 states and a hoard of private concerns urgently sued to block its implementation. It’s painfully obvious a major constituency in the country was disenfranchised during the CWR development process; why else would this happen at the state level?
Simple logic suggests the current CWR/WOTUS needs to be reworked; you’ll never please everybody with a dog in this hunt but there’s simply no possible way to defend the position the EPA didn’t wildly miss the mark here. The protracted CWR/WOTUS legal dance has already begun, is far from over, and will likely take years to hammer out. TU, the TRCP, and AR (among many others) should be leading the charge for a real, workable resolution, not beating an apparently dead horse.
Better yet, like the original – and very appropriate and useful – Clean Water Act (1948, 1972), maybe Congress should man up and tackle this one (though count me among those who are certain Congress hasn’t been able to get its collective head out of its a** for 20+ years).
Second, it’s long past time to drop the inane logical fallacy that if one doesn’t support the CWR/WOTUS of 2015 as written they’re against clean water for all. This is one of the more pervasive, idiotic, and intellectually bereft logical fallacies floating around the outdoor world today; if you see that spouted on any site, be sure they’re not interested in telling the whole truth and have another agenda to sell you. (By the way, if you missed Mike Rowe’s recent discourse on logical fallacies, you’ll want to read his working man’s explanation here.)
Third and finally, since the pollution peak of the 70’s in this country admirable progress has been made in cleaning up our nation’s water. It’s time to get it right and finish the job with a CWR/WOTUS that really works. The odds of that coming out of Congress or the EPA are infinitesimal; sportsmen and women have a chance to truly lead and make a difference here – though that will require telling the whole damn truth about key issues as a start.
Let’s git ‘er done.
[Comments that add constructively to the conversation are very much welcomed and appreciated; otherwise the bullshit filter is cranked to max settings and you’ll have to GYOFB.]
