EPA finalizes Clean Water Rule; defines ‘waters of the United States’

WASHINGTON — You can see the clean water battle lines simply by looking at what the opposing entities each call the issue.

The U.S. Environmental Protection Agency calls its new ruling the Clean Water Rule. Farm group opponents, like the American Farm Bureau, call it the Waters of the United States rule. And at the crux of the new federal rules will be the interpretation of “waters of the United States” and whether or not this expands the federal government’s role.

The U.S. Environmental Protection Agency and the U.S. Army finalized the Clean Water Rule May 27. The rule clarifies which waters are protected under the Clean Water Act.

In its ruling release, the EPA maintains the rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.

“For the water in the rivers and lakes in our communities that flow to our drinking water to be clean, the streams and wetlands that feed them need to be clean too,” said EPA Administrator Gina McCarthy.

“This rule responds to the public’s demand for greater clarity, consistency, and predictability when making jurisdictional determinations,” added Assistant Secretary for the Army (Civil Works) Jo-Ellen Darcy.

A bad fix

But opponents were quick to say the ruling doesn’t fix the federal agency’s overreach.

“The EPA has set themselves up to increase federal control over private lands, and I will not allow it,” said U.S. Sen. Jim Inhofe, R-Okla., chairman of the Senate Committee on Environmental and Public Works, in a prepared statement.

Inhofe is part of a bipartisan group of senators, including both of West Virginia’s senators, but none from Ohio and Pennsylvania, who introduced S. 1140, the Federal Water Quality Protection Act, in April, to limit EPA’s attempt to use the Clean Water Act to expand federal control over land and water, including EPA’s effort to use the rule as a tool for habitat protection.

Inhofe said agencies such as the Fish and Wildlife Service have used conservation partnerships and land purchases to maintain isolated waters for bird habitat, including prairie potholes and playa lakes. Under the final rule, the senator claims, isolated bodies of water will be considered regulated “systems.”

U.S. Sen. Joe Manchin, D-W.Va., who is a co-sponsor of S. 1140, said “the EPA is once again dangerously overreaching its boundaries by expanding the definition of water sources it can regulate.”

Implementing the rule, he added, will have a “significant impact on West Virginia’s economy.”

House Committee on Natural Resources Chairman Rob Bishop, R-Utah, was more blunt in his response to the rule.

“It gives the agency power to bully states, Congress, and local and private water users.”

Farm group reactions

American Farm Bureau Federation President Bob Stallman said the EPA’s original proposal “dealt more with regulating land use” than water quality, and that the farm organization is still reviewing the final rule, particularly as it addresses streams, ditches, small ponds and isolated wetlands.

The National Farmers Union said the EPA made “genuine efforts” to reach out to agriculture stakeholders.

“While the rule is not perfect from our perspective, the final rule is an improvement over the proposed rule,” the farm group’s prepared statement read.

The NFU voiced concerns, however, “about waters that cannot impact the quality of jurisdictional waters will fall under jurisdiction, or that farmers will not have the regulatory certainty they need to address these waters appropriately.”

In developing the rule, the agencies held more than 400 meetings with stakeholders across the country, and reviewed over 1 million public comments.

In addition to the ruling, the EPA is catching flak following a New York Times article that reported that the EPA may have conducted an unprecedented and possibly illegal lobbying and marketing effort on behalf of the controversial WOTUS rule making.

Some of the Clean Water Rule’s coverage:

• The Clean Water Act protects navigable waterways and their tributaries.
• The new EPA/Army Corps of Engineers Clean Water Act rule says a tributary must show physical features of flowing water — a bed, bank, and ordinary high water mark — to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
• Provides certainty in how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable, and focuses on streams.
• The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. Ditches that are not constructed in streams and that flow only when it rains are not covered.
• Reduces the use of case-specific analysis of waters. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.
• A Clean Water Act permit is needed only if a water is going to be polluted or destroyed.
• The Clean Water Rule does not create any new permitting requirements for farmers, according to the EPA’s statement. Activities like planting, harvesting, and moving livestock will continue to be exempt from Clean Water Act regulation.

Source: U.S. EPA