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U.S. Reps. Alan Grayson, D-Orlando, and David Jolly, R-Indian Shores, met in an open debate in Orlando on April 25, 2016. (AP photo) U.S. Reps. Alan Grayson, D-Orlando, and David Jolly, R-Indian Shores, met in an open debate in Orlando on April 25, 2016. (AP photo)

U.S. Reps. Alan Grayson, D-Orlando, and David Jolly, R-Indian Shores, met in an open debate in Orlando on April 25, 2016. (AP photo)

Joshua Gillin
By Joshua Gillin May 9, 2016

EPA regulation will force $31 million upgrade to Pinellas County ditch, U.S. Rep. David Jolly says

A voter at an Orlando debate asked U.S. Reps. David Jolly and Alan Grayson whether climate change presented the greatest threat the world currently faces. That’s when Jolly steered the conversation into a ditch.

The Indian Shores Republican answered that "agents of terror" are the greatest threat against America, but the effects of climate change are real and will need to be addressed. He said he preferred tax credits and federal money for research instead of stricter environmental and energy regulations from Washington.

"What won't work is the president's Waters of the United States regulation that's going to cost Pinellas County, just one county, between $400 million and $2.5 billion," Jolly said on April 25, 2016. "It will cost them $31 million to fix a single ditch."

We wanted to know if there was a new regulation forcing Pinellas County to spend $31 million to fix a ditch. What we found out is that the price is an old estimate, and there's little consensus how the Environmental Protection Agency is actually changing the rules.

Ditch debate

Jolly’s campaign said his example came from a letter the business lobbying group Associated Industries of Florida sent to members of Congress on Aug. 12, 2014. The letter asked the state’s congressional delegation to support changes AIF wanted for a new rule concerning the Clean Water Act.

Before we get swept up in regulatory minutiae: The original Clean Water Act was passed in 1972 after pollution issues and disasters like Cuyahoga River fire in Ohio of 1969 and Lake Thonotosassa fish kills in Florida. The legislation was supposed to regulate discharges into waterways and wetlands, but environmentalists and industry groups have long debated which bodies of water the act encompassed.

U.S. Supreme Court rulings in 2001 and 2006 raised questions about the law’s reach, so the EPA and the Army Corps of Engineers aimed to clarify what waters were federally protected, or "waters of the United States" (known as WOTUS, really). The agencies published a proposed rule change on April 21, 2014, that addressed several issues, including whether the law applied to ditches and in which circumstances.

That did anything but dry up debate. Groups like the National Association of Counties and Republican attorneys general from several states flooded the EPA with objections to the rule. (Florida later joined the call for courts to review the rule.)

We’re sticking to ditches for this fact-check. Opponents were concerned that if the rule reclassified a ditch as a water of the United States, county governments could be on the hook for upgrading them to meet EPA rules. In its letter to Congress, AIF said upgrades would be costly.

AIF’s initial assessment was based on a "preliminary analysis" commissioned by the Florida Stormwater Association, a group of the state’s stormwater management officials. The analysis looked at eight waterways and the estimated cost to bring them in line with the new regulation.

Among the eight examples was "Pinellas Park Ditch #5," a 1.3-mile-long flood control canal known as Bonn Creek that empties into the Joe’s Creek Watershed. The ditch, with mostly concrete banks, was designed to handle stormwater runoff. The analysis said the ditch wasn’t currently under the jurisdiction of the Clean Water Act, but it would be under the proposed rule change.

The report estimated it would cost $31.3 million to make the ditch compliant with the Clean Water Act’s accepted phosphorous and nitrogen discharge levels. Whether any upgrades to that ditch would be that expensive — or even necessary — is still up in the air.

Jon Devine, senior adviser to the Natural Resources Defense Council Action Fund, said the analysis Jolly cited doesn’t say why it would cost $31.3 million, and is out of date as a talking point.

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"It’s based on the proposed rule, not the final rule, and the final rule took account of a lot of input — including that of municipal stormwater dischargers," Devine said.

Critics did manage to alter the current of the discussion. After the rule was announced in April 2014, the public was invited to comment. Their concerns about ditches led to changes in the final rule, which was announced in May 2015, and published in June.

Among the revisions was that "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."  

The short version: If a ditch that handles stormwater wasn’t under federal jurisdiction before, it wouldn’t be under the new rule. When we contacted AIF for comment on the revised rule, the group said they were not currently working on the issue and had nothing to add.

"The bottom line is that the final Clean Water Rule does not change, in any manner, the way stormwater systems have always been covered under the CWA and, therefore, does not result in any new costs for CWA compliance," EPA spokeswoman Enesta Jones told us in an email. 

If the EPA doesn't require a status change, that would leave the ditch in local control. Devine noted that the EPA usually allows state agencies to decide most of their own policies.

"The states establish what criteria apply to particular waterways, based on their state-designated uses," he said. "Though this is subject to EPA oversight, in my experience (the) EPA is extremely deferential to state judgments."

But EPA reassurances haven’t settled these turbulent waters.

Kelli Hammer Levy, chairwoman of the Florida Stormwater Association’s legislative committee and a section manager for Pinellas County watershed management, disagreed with the EPA’s assertion. She said the rule’s reach was not yet fully known, and provisions in it would change the ditch’s status.

"Bonn Creek would be classified as a tributary in this case because it has a bed, bank and high water mark and discharges into a (water of the United States)," Levy said in an email.

Pinellas County isn’t alone in not accepting what the EPA says. Many state officials across the country still didn’t trust the parameters of the final rule, which was set to go into effect in August 2015. It has been put on hold nationally because of pending litigation from more than a dozen states.

Our ruling

Jolly said that under a new federal regulation, it will cost Pinellas County "$31 million to fix a single ditch."

His figure comes from a 2014 report that claimed it would cost the county that much to make a stormwater ditch in Pinellas Park compliant with Clean Water Act pollution guidelines under a new rule. But the report didn’t specify why it would cost so much, and didn’t reflect changes the EPA made to the rule in 2015.

Jolly didn’t make up the $31 million estimate, but his wording makes it sound as if the EPA is definitely forcing crippling regulatory costs on the county. The agency denies the rule change affects how ditches are classified, but the scope of the new rule is still far from settled. Debate abounds about how specific waterways would be affected by the final rule, which currently is under a court stay pending litigation.

There’s no irrefutable evidence of an imminent (and expensive) federal takeover of the ditch in question. We rate his statement Mostly False.

Our Sources

U.S. Rep. David Jolly, "Florida Open Debate Live," April 25, 2016

U.S. Environmental Protection Agency, "Economic Analysis of Proposed Revised Definition of Waters of the United States," March 2014

Federal Register, "Definition of ‘Waters of the United States’ Under the Clean Water Act," April 21, 2014

Florida Stormwater Association, "Proposed Regulations: Waters of the United States; Assessment of Impacts," July 25, 2014

Associated Industries of Florida/Florida H20 Coalition, Letter to Alan Grayson/Florida congressional delegation, Aug. 12, 2014

National Association of Counties/Florida H20 Coalition, "Estimated Fiscal Impacts on Selected Municipal Separate Storm Sewer System Permittees," Aug. 29, 2014

West Virginia Attorney General’s Office, Letter to EPA and Army Corps of Engineers, Oct. 8, 2014

Daily Caller, "Rule Of Law: How Obama’s EPA Is Trying To Regulate Your Creek Beds And Ditches," Oct. 16, 2014

U.S. Environmental Protection Agency, "Clean Water Rule Protects Streams and Wetlands Critical to Public Health, Communities, and Economy," May 27, 2015

Federal Register, "Clean Water Rule: Definition of ‘Waters of the United States’," June 29, 2015

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

Washington Post Volokh Conspiracy blog, "North Dakota district court blocks controversial ‘Waters of the United States’ rule," Aug. 28, 2015

Washington Post Volokh Conspiracy blog, "Sixth Circuit puts controversial ‘waters of the United States’ (WOTUS) rule on hold," Oct. 9, 2015

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

Congressional Research Service, "EPA and the Army Corps’ Rule to Define ‘Waters of the United States’," Jan. 4, 2016

Washington Post Volokh Conspiracy blog, "Sixth Circuit claims jurisdiction to hear merits of challenge to EPA ‘waters of the United States’ (WOTUS) rule," Feb. 22, 2016

PolitiFact Florida, "Ted Cruz says EPA tried to regulate puddles and drainage ditches," March 31, 2016

Pinellas County Wateratlas, "Sixth Circuit Will Not Rehear Venue Question in Clean Water Act Rule Dispute," April 26, 2016

National Association of Counties, "Waters of the United States," accessed May 4, 2016

U.S. Environmental Protection Agency, "Clean Water Rule," accessed May 4, 2016

U.S. Environmental Protection Agency, "‘Definition of ‘Waters of the United States’ Under the Clean Water Act’ — Advice and comment on science supporting the EPA’s proposed rule," accessed May 4, 2016

U.S. Environmental Protection Agency, "Clean Water Rule Litigation Statement," accessed May 5, 2016

U.S. Environmental Protection Agency, "What the Clean Water Rule Does Not Do," accessed May 5, 2016

U.S. Environmental Protection Agency, "What the Clean Water Rule Does," accessed May 5, 2016

U.S. Environmental Protection Agency, "Clean Water Rule Comment Compendium Topic 6: Ditches," accessed May 5, 2016

U.S. Army Corps of Engineers, "Clean Water Act Proposed Rule for Definition of Waters of the U.S.," accessed May 5, 2016

Interview with Max Goodman, Jolly spokesman, April 26, May 4-5, 2016

Interview with Enesta Jones, EPA spokeswoman, May 2-5, 2016

Interview with Stephen Trickey, Associated Industries of Florida executive vice president, May 4-5, 2016

Interview with Jon Devine, Natural Resource Defense Council Action Fund senior adviser, May 5-6, 2016

Interview with Kelli Hammer Levy,  Pinellas County watershed management section manager, May 6, 2016

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