EPA asserts protections under Clean Water Act

Connections among streams, wetlands, rivers and lakes are at the heart of a new rule proposed today to clarify the intent of the federal Clean Water Act and to spell out the authority of federal agencies.

Specifically, the rule proposed jointly by the U.S Environmental Protection Agency and Army Corps of Engineers calls for protecting most natural water features under the Clean Water Act. The rule embodies the notion that small tributaries and wetlands are likely connected to larger tributaries, rivers, wetlands and natural channels, even though they may not always appear connected.

The proposed rule is designed to reconcile scientific understanding of hydraulic connections with two U.S. Supreme Court rulings, which hold that federal jurisdiction applies only to permanent water features and their connecting waters. In the 2006 decision “Raponos v. United States” (PDF 535 kb), the court was highly critical of the Army Corps of Engineers for its effort to squeeze a wide variety of waterways under the definition of “waters of the United States”:

“In applying the definition to ‘ephemeral streams,’ ‘wet meadows,’ storm sewers and culverts, ‘directional sheet flow during storm events,’ drain tiles, man-made drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term ‘waters of the United States’ beyond parody. The plain language of the statute simply does not authorize this ‘land is waters’ approach to federal jurisdiction….

“In sum, on its only plausible interpretation, the phrase ‘the waters of the United States’ includes only those relatively permanent, standing or continuously flowing bodies of water ‘forming geographic features’ that are described in ordinary parlance as ‘streams, oceans, rivers [and] lakes.’ See ‘Webster’s Second.’ The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall.”

The Supreme Court ruling has caused confusion, especially in situations where hydraulic connections were not obvious and could be questioned by property owners who wished to avoid federal regulators.

A scientific report was requisitioned by the EPA to fill the gap created by the court. Some findings from the report “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” (PDF 11.3 mb):

“All tributary streams, including perennial, intermittent, and ephemeral streams, are physically, chemically, and biologically connected to downstream rivers via channels and associated alluvial deposits where water and other materials are concentrated, mixed, transformed, and transported…

“Wetlands and open-waters in landscape settings that have bidirectional hydrologic exchanges with streams or rivers … are physically, chemically, and biologically connected with rivers via the export of channel-forming sediment and woody debris, temporary storage of local groundwater that supports base flow in rivers, and transport of stored organic matter.”

In the Puget Sound region, the connections among waterways are fairly obvious. In more arid states, however, the connections may occur only during rainy periods, if then.

In a press release, EPA Administrator Gina McCarthy said the proposed rule fits the Supreme Court’s narrower reading of the Clean Water Act while maintaining the historical coverage of the federal agencies:

“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities. Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.”

Jo-Ellen Darcy, assistant secretary of the Army for civil works, added:

“Today’s rulemaking will better protect our aquatic resources, by strengthening the consistency, predictability, and transparency of our jurisdictional determinations. The rule’s clarifications will result in a better public service nationwide.”

Specifically, the proposed rule clarifies that under the Clean Water Act:

  • Most seasonal and rain dependent streams are protected.

  • Wetlands near rivers and streams are protected.

  • Other types of waters with more uncertain connections to downstream water will be evaluated through a case specific analysis of whether the connection is or is not protecting similarly situated waters.
  • Agricultural exclusions are retained, and agencies have identified 53 conservation practices that will be considered exempt from Corps permits.

EPA’s webpage: Waters of the United States

Environmental groups were thrilled that the Obama administration stepped up to protect waterways where state laws are not as strong.

Stated Trip Van Noppen, president of Earthjustice:

“The EPA’s new Clean Water Act rule finally restores protections so that we can begin the hard work of cleaning up our waters for our children to swim in, fish in, and drink from.

“No doubt, polluters will rail and lobby against this rule and any other clean water safeguards that keep them from dumping their toxic waste in our communities and waters, or that hold them accountable for their pollution.”

“We cannot back down on protecting the waters that eventually flow through our faucets. Our children, our health, and our very drinking water are at stake. We urge the Obama administration to resist the polluter lobbies and quickly move forward in protecting our waterways and our families.”

Not everyone was thrilled with the new rule. Colorado Gov. John Hickenlooper and Nevada Gov. Brian Sandoval of the Western Governors Association wrote a letter to McCarthy and Darcy complaining that state officials have been left out of the conversation, despite state authority to regulate water use.

In a March 10 letter, Phillip Ward of the Western States Water Council urged agency officials to delay publication of the proposed rule until EPA’s connectivity report undergoes peer review:

“EPA has indicated that its draft connectivity report will serve to inform the final rule on CWA jurisdiction. However, the draft rule’s submission to the Office of Management and Budget (OMB) before the finalization of the connectivity report raises concerns that the final report will have little or no influence on the final rule….

“Additionally, many western states have submitted individual comments for the EPA’s Science Advisory Board (SAB) to consider in its review of the draft connectivity report. EPA should carefully evaluate the SAB’s consideration of these comments and any subsequent recommendations from the final report.”

Kevin Kelly, president of the National Association of Homebuilders said the promise of clarification has brought a greater regulatory burden:

“EPA was told to make changes to the rule so that everyone understands exactly when a builder needs a federal wetlands permit before turning the first shovel of dirt. Instead, EPA has added just about everything into its jurisdiction by expanding the definition of a ‘tributary’ — even ditches and manmade canals, or any other feature that a regulator determines to have a bed, bank and high-water mark.”

Comments from others in favor of the proposed rule:

John Crabtree, Center for Rural Affairs:

“The proposed rule is a commonsense effort to clear the regulatory waters, protect the quality of the nation’s surface waters, and provide an environment in which economically vital activities such as hunting, fishing and birding as well as farming and ranching can both thrive and contribute to a better quality of life and safer drinking water for those of us that live here, and also for our neighbors downstream.”

Peter Lehner, Executive Director of the Natural Resources Defense Council:

“This is good news for boaters, anglers, swimmers and families who rely on clean drinking water. EPA took an important step to finally rescue these waters from legal limbo. Even though these are common-sense protections, the polluters are sure to attack them. People who care about clean water need to make their voices heard in the comment period.”

Michael Brune, Executive Director of the Sierra Club:

“The Sierra Club applauds the Obama administration for this effort to restore a common-sense approach to protecting our nation’s lakes, rivers and streams. Clean water is an undeniable necessity for the health of our families, our environment, and our economy — not to mention our enjoyment. And, as the Environmental Protection Agency and U.S. Army Corps of Engineers have recognized with this rule, ensuring the protection of water bodies upstream is vital to keeping pollution out of our waters downstream.

“For too long, dirty fossil fuel companies and land developers have exploited the uncertainty over which waters are protected by the Clean Water Act to pollute our lakes, rivers and streams. As a result, the drinking water sources for more than a third of all Americans have been put at risk.”

Dale Hall, CEO of Ducks Unlimited:

“The release of the draft rule gets us one step closer to better defining Clean Water Act regulations in regard to wetlands. We are also pleased with the open process EPA has adopted, which invites the public, Congress and all interested parties to participate in the discussion. EPA’s draft science report last year showed many categories of wetlands, including prairie potholes, may be geographically isolated but are still connected to, and have a significant impact on, downstream waters.”

Larry Schweiger, president and CEO of the National Wildlife Federation:

“This is a huge step forward for protecting America’s waters and wildlife. You cannot tear out a tree’s fine roots and expect it to survive. The streams and wetlands protected by this rule supply drinking water to more than one-third of all Americans. Our rivers, lakes, and bays will be cleaner and healthier once this rule becomes the law of the land.

“This proposal clarifies which waters are — and which are not — protected by the Clean Water Act. It will protect streams and wetlands that are currently in legal limbo. The rule also specifically excludes many man-made ditches, ponds, and irrigation systems and honors the law’s current exemptions for normal farming, ranching, and forestry practices.

“Our only disappointment is that the proposal stops short of restoring full protections for many wetlands important for wildlife, such as prairie potholes, Carolina bays, vernal pools, and playa lakes. We look forward to making the legal and scientific case for protecting these waters during the comment period to come.”

Comments from others opposed to the proposed rule:

U.S. Rep. Lamar Smith (R-Texas), chairman of the House Committee on Science, Space and Technology:

“If approved, this rule could allow the EPA to regulate virtually every body of water in the United States… This could be the largest expansion ever of EPA’s authority to regulate private property. It’s troubling that the administration proposed this expansion before its independent science advisers have had the chance to complete its review of the underlying science. The Obama administration continues to sidestep scientific integrity in order to fast track an abusive regulatory agenda.”

Kirk Johnson, senior vice president of government relations for National Rural Electric Coop Association:

“Such an expansion of Clean Water Act rules would have significant impacts on co-ops by increasing the number and costs of permits needed for distribution and transportation corridor construction and maintenance and substations.”

One thought on “EPA asserts protections under Clean Water Act

  1. Here is THE MOST IMPORTANT POINT of this federal rape of states’ rights and property owners, buried nearly at the bottom of this piece. Take heed folks, this is another despicable example of government regulation without representation. Thank you writer of this piece for including the quote by U.S. Rep. Lamar Smith.
    “If approved, this rule could allow the EPA to regulate virtually every body of water in the United States… This could be the largest expansion ever of EPA’s authority to regulate private property. It’s troubling that the administration proposed this expansion before its independent science advisers have had the chance to complete its review of the underlying science. The Obama administration continues to sidestep scientific integrity in order to fast track an abusive regulatory agenda.”

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