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The Clean Water Act regulates streams that flow into downstream waters. (Environmental Protection Agency) The Clean Water Act regulates streams that flow into downstream waters. (Environmental Protection Agency)

The Clean Water Act regulates streams that flow into downstream waters. (Environmental Protection Agency)

Amy Sherman
By Amy Sherman March 31, 2016

Ted Cruz says EPA tried to regulate puddles and drainage ditches

Ted Cruz says the Environmental Protection Agency has gone overboard in regulating farms by regulating even puddles and ditches.

"They're hurting from a federal government whose policies have been making it harder and harder for farmers to survive. They're hurting from an EPA who is imposing massive burdens on farms," Cruz said in a March 29 CNN town hall in Milwaukee, Wis. "For example, the Waters of the United States Rule (is) where the EPA has tried to define a puddle or a drainage ditch on your farm to be navigable waters and thus subject to massive environmental regulations."

Are puddles and drainage ditches regulated by the EPA? We’ll wade through the research to find out. A Cruz spokesman did not answer our questions for this fact-check.

What a water rule said about puddles

The Clean Water Act passed in 1972 after high-profile disasters and pollution problems, including the Cuyahoga River fire in Ohio and fish kills at Florida’s Lake Thonotosassa in 1969.

The goal of the act was to regulate discharges into water, but for years industry groups and environmental advocates debated which bodies of water should be included.

U.S. Supreme Court rulings in 2001 and 2006 created uncertainty about the law’s reach. In May 2015, the EPA announced a new rule intended to clarify which bodies of water fall under the act. But within months it was put on hold nationwide pending litigation and remaind on hold as of the writing of this fact-check -- a key point that Cruz omitted.

The crux of the rule wasn’t the size of the bodies of water, but whether a body of water could carry pollution into other larger waters. The EPA wants to regulate tributaries, ponds, streams and wetlands to prevent businesses, farms or other entities from dumping waste into the water.

Before the rule was finalized, the EPA invited public comment and the regulation of puddles became a talking point for conservatives and business advocates who bashed the rule as federal overreach. To clear up matters, the final rule explicitly addressed the question of puddles:

"The proposed rule did not explicitly exclude puddles because the agencies have never considered puddles to meet the minimum standard for being a 'water of the United States,' and it is an inexact term. A puddle is commonly considered a very small, shallow, and highly transitory pool of water that forms on pavement or uplands during or immediately after a rainstorm or similar precipitation event. However, numerous commenters asked that the agencies expressly exclude them in a rule. The final rule does so."

The American Farm Bureau Federation has argued that the rule language was so broad that it could ultimately include something not much larger than a puddle. Spokesman William Rodger says that puddles could be classified as "vernal pools" or "wetlands" and then fall under the EPA’s jurisdiction.

"We stand by our assertion that puddles – as commonly understood by the average person – can be regulated under the Waters of the United States rule," he said in response to our questions about Cruz’s statement

But multiple environmental experts have told PolitiFact Florida that they were skeptical that the EPA would end up regulating puddles.

"It is an absurd assertion," William L. Andreen, University of Alabama law professor, told PolitiFact Florida in October. "There are no cases on point because the agencies have never asserted jurisdiction in such fantastical situations."

What the water rule said about ditches

The EPA had previously interpreted the Clean Water Act to include jurisdiction over ditches but sought to provide clarity with the new rule, which also contained the puddle exclusion. The rule does not regulate most ditches, according to the EPA.

Here is what it does say about ditches:

"The rule continues the current policy of regulating ditches that are constructed in tributaries or are relocated tributaries or, in certain circumstances drain wetlands, or that science clearly demonstrates are functioning as a tributary. These jurisdictional waters affect the chemical, physical, and biological integrity of downstream waters. The rule further reduces existing confusion and inconsistency regarding the regulation of ditches by explicitly excluding certain categories of ditches, such as ditches that flow only after precipitation."

Farmers feared that ditches that flow only during or after a rain would be classified in a way that would put them under enforcement.

U.S. Rep. Dave Loebsack, D-Iowa, raised that concern in a March 22 congressional hearing.

EPA Administrator Gina McCarthy said that even if it rains hard and looks like there’s streams everywhere, those don’t count, she said.

"It only has to be something that is constructed or natural that really can impact the downstream water. After that, there's no connection," McCarthy said.

The EPA wrote in a response to comments about ditches: "The agencies do not intend to increase the number of ditches that are jurisdictional. In fact, by clarifying and expanding the specific exclusions for ditches, the agencies anticipate that more ditches will be clearly excluded in comparison to previous regulations and guidance related to waters of the U.S."

Our ruling

Cruz said, "The EPA has tried to define a puddle or a drainage ditch on your farm to be navigable waters and thus subject to massive environmental regulations."

The EPA’s water rule specifically excludes puddles. It only applies to ditches that are constructed out of streams or ditches that function like streams and could carry pollution to downstream waters.

Cruz omits that the water rule was put on hold by the courts in 2015 pending litigation.

We rate this claim Mostly False.

 

Our Sources

CNN, Town hall transcript, March 29, 2016

CQ Transcript, "House committee on energy and commerce, Subcommittee on Energy and Power, Subcommittee on Environment and the Economy," March 22, 2016

Interview, David Goldston director of government affairs National Resource Defense Council Action Fund, March 30, 2016

Interview, Jon Devine, senior adviser to the National Resource Defense Council Action Fund, March 30, 2016

Interview, William Rodger, American Farm Bureau Federation spokesman, March 30, 2016

PolitiFact Florida, "Marco Rubio says EPA rule covers 'water barely bigger than a puddle,'" Oct. 22, 2015

Environmental Protection Agency, "Clean Water Rule response to comments," June 2015

Environmental Protection Agency, Fact sheet about Clean Water rule, May 2015

Environmental Protection Agency, "Clean Water Rule,"Accessed Oct. 20, 2015

Environmental Protection Agency, "History of the Clean Water Act," Accessed Oct. 20, 2015

Environmental Protection Agency, "Clean Water rule litigation statement," Accessed Oct. 20, 2015

Federal Register, Clean water rule, June 29, 2015

U.S. Army Corps of Engineers, Approved jurisdictional determinations, Accessed Oct. 21, 2015

American Farm Bureau Federation, Ditchtherule, Accessed Oct. 21, 2015

U.S. Chamber of Commerce press release, "U.S. Chamber of Commerce applauds passage of House legislation to stop waters of the U.S. rule," May 13, 2015

U.S. Chamber of Commerce, Comments about proposed rule, Nov. 12, 2014

The Hill, "Federal judge blocks Obama’s water rule," Aug. 27, 2015

Associated Press, "EPA: Clean water rule in effect despite court ruling," Aug. 28, 2015

Christian Science Monitor, "Why conservatives applaud judges who block federal clean water rules," Oct. 10, 2015

 

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Ted Cruz says EPA tried to regulate puddles and drainage ditches

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