The Environmental Protection Agency and the U.S. Army Corps of Engineers announced the finalized new Clean Water Rule they have been working on for more than a year. The EPA claims the rule does not create any new permitting requirements and maintains all previous exemptions and exclusions.
The positive spin from EPA’s news release was as follows: “In an historic step for the protection of clean water, the U.S. Environmental Protection Agency and the U.S. Army finalized the Clean Water Rule today to clearly protect from pollution and degradation the streams and wetlands that form the foundation of the nation’s water resources.”
The news release stressed, “The rule ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry. The rule is grounded in law and the latest science, and is shaped by public input. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.”
EPA Administrator Gina McCarthy said, “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. Protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms, and warmer temperatures—which is why EPA and the Army have finalized the Clean Water Rule to protect these important waters, so we can strengthen our economy and provide certainty to American businesses.”
Assistant Secretary for the Army (Civil Works) Jo-Ellen Darcy said, “Today's rule marks the beginning of a new era in the history of the Clean Water Act. This rule responds to the public's demand for greater clarity, consistency, and predictability when making jurisdictional determinations. The result will be better public service nationwide."
The EPA contends that about 117 million Americans—one in three people—get drinking water from streams that lacked clear protection before the Clean Water Rule. America’s “cherished way of life depends on clean water,” it was further claimed.
The announcement also noted, “Protection for many of the nation’s streams and wetlands has been confusing, complex, and time-consuming as the result of Supreme Court decisions in 2001 and 2006. EPA and the Army are taking this action today to provide clarity on protections under the Clean Water Act after receiving requests for over a decade from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists, and the public for a rulemaking.”
In developing the waters of the U.S. (WOTUS) rule, the agencies held more than 400 meetings with stakeholders across the country, reviewed over one million public comments and “listened carefully to perspectives from all sides.” It was also claimed that the latest science was considered, including a report summarizing more than 1,200 peer-reviewed and published scientific studies, “which showed that small streams and wetlands play an integral role in the health of larger downstream water bodies.”
A climate change reference was thrown into the mix as a claim for even more necessity for water resources protection, in the announcement. “Impacts from climate change like drought, sea level rise, stronger storms, and warmer temperatures threaten the quantity and quality of America’s water. Protecting streams and wetlands will improve our nation’s resilience to climate change.”
Specifics of the Clean Water Rule as provided by EPA are as follows:
- 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.
Additional explanation was that a Clean Water Act permit is only needed if water is going to be polluted or destroyed.
“The Clean Water Rule only protects the types of waters that have historically been covered under the Clean Water Act. It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows, or tile drains. It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field. The Clean Water Rule addresses the pollution and destruction of waterways—not land use or private property rights,” the EPA contended in the announcement.
“The rule protects clean water necessary for farming, ranching, and forestry and provides greater clarity and certainty to farmers about coverage of the Clean Water Act,” it was stressed. And pointed out was that the rule does not create any new permitting requirements for America’s farmers. “Activities like planting, harvesting, and moving livestock have long been exempt from Clean Water Act regulation, and the Clean Water Rule preserves those exemptions.”
The Clean Water Rule will be effective 60 days after publication in the Federal Register.
More information is at www.epa.gov/cleanwaterrule.