EPA Issues Final Clean Water Rule; Opposition Mounts

The Clean Water Act rules have already run into deep opposition from farm groups and the Republican-led Congress.

📅   Wed May 27, 2015 - National Edition
Mary Clare Jalonick


The rules issued Wednesday by the Environmental Protection Agency and the U.S. Army Corps of Engineers are designed to clarify which smaller waterways fall under federal protection.
The rules issued Wednesday by the Environmental Protection Agency and the U.S. Army Corps of Engineers are designed to clarify which smaller waterways fall under federal protection.

WASHINGTON (AP) Drinking water for 117 million Americans will be protected under new government rules shielding small streams, tributaries and wetlands from pollution and development, the Obama administration said Wednesday, May 27.

The rules issued Wednesday by the Environmental Protection Agency and the U.S. Army Corps of Engineers are designed to clarify which smaller waterways fall under federal protection.

Two Supreme Court rulings had left the reach of the Clean Water Act uncertain. EPA Administrator Gina McCarthy said the rule will only affect waters that have a “direct and significant” connection to larger bodies of water downstream that are already protected. The EPA has said 60 percent of the nation’s streams and waterways are vulnerable, and these rules clarify which of those waters are protected. The regulations would only kick in if a business or landowner takes steps to pollute or destroy those waters.

President Barack Obama said in a statement that the rule “will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable.”

The rules have already run into deep opposition from farm groups and the Republican-led Congress. The House voted to block the regulations earlier this month, and a similar effort is underway in the Senate.

Echoing the concerns of farm groups, lawmakers have said the rules could greatly expand the reach of the clean water law and create confusion among officials in the field as to which bodies of water must be protected. Farmers wary of more federal regulations are concerned that every stream, ditch and puddle on their private land could now be subject to federal oversight.

After the rule was released, Republican Sen. James Inhofe of Oklahoma, chairman of the Senate Environment and Public Works Committee, said his panel will consider the Senate bill to force the EPA to withdraw and rewrite the rules this summer and “continue our work to halt EPA’s unprecedented land grab.”

McCarthy has acknowledged the proposed rules issued last year were confusing and said the final rules were written to be more clear. She said the regulations don’t create any new permitting requirements for agriculture and even adds some new exemptions for artificial lakes and ponds and water-filled depressions, among other features.

These efforts were “to make clear our goal is to stay out of agriculture’s way,” McCarthy said in a blog on the EPA Web site.

Specifically, according to the EPA, the Clean Water Rule:

• Clearly defines and protects tributaries that impact the health of downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The rule says that 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 because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.

• Protects the nation’s regional water treasures. Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.

• Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.

• Maintains the status of waters within Municipal Separate Storm Sewer Systems. The rule does not change how those waters are treated and encourages the use of green infrastructure.

• Reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. 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.