EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands

Blanca Wetlands via the National Park Service
Blanca Wetlands via the National Park Service

Here’s the release from the Environmental Protection Agency (Julia Q. Ortiz):

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) today jointly released a proposed rule to clarify protection under the Clean Water Act for streams and wetlands that form the foundation of the nation’s water resources. The proposed rule will benefit businesses by increasing efficiency in determining coverage of the Clean Water Act. The agencies are launching a robust outreach effort over the next 90 days, holding discussions around the country and gathering input needed to shape a final rule.

Determining Clean Water Act protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006. For nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public asked for a rule-making to provide clarity.

The proposed rule clarifies protection for streams and wetlands. The proposed definitions of waters will apply to all Clean Water Act programs. It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.

“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” said EPA Administrator Gina McCarthy. “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.”

“America’s waters and wetlands are valuable resources that must be protected today and for future generations,” said Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy. “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.”

The health of rivers, lakes, bays, and coastal waters depend on the streams and wetlands where they begin. Streams and wetlands provide many benefits to communities – they trap floodwaters, recharge groundwater supplies, remove pollution, and provide habitat for fish and wildlife. They are also economic drivers because of their role in fishing, hunting, agriculture, recreation, energy, and manufacturing.

About 60 percent of stream miles in the U.S. only flow seasonally or after rain, but have a considerable impact on the downstream waters. And approximately 117 million people – one in three Americans – get drinking water from public systems that rely in part on these streams. These are important waterways for which EPA and the Army Corps is clarifying protection.

Specifically, the proposed rule clarifies that under the Clean Water Act and based on the science:

  • Most seasonal and rain-dependent streams are protected.
  • Wetlands near rivers and streams are protected.
  • Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant. However, to provide more certainty, the proposal requests comment on options protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.
  • The proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture. Additionally, EPA and the Army Corps have coordinated with the U.S. Department of Agriculture (USDA) to develop an interpretive rule to ensure that 56 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements. The agencies will work together to implement these new exemptions and periodically review, and update USDA’s Natural Resources Conservation Service conservation practice standards and activities that would qualify under the exemption. Any agriculture activity that does not result in the discharge of a pollutant to waters of the U.S. still does not require a permit.

    The proposed rule also helps states and tribes – according to a study by the Environmental Law Institute, 36 states have legal limitations on their ability to fully protect waters that aren’t covered by the Clean Water Act.

    The proposed rule is supported by the latest peer-reviewed science, including a draft scientific assessment by EPA, which presents a review and synthesis of more than 1,000 pieces of scientific literature. The rule will not be finalized until the final version of this scientific assessment is complete.

    Forty years ago, two-thirds of America’s lakes, rivers and coastal waters were unsafe for fishing and swimming. Because of the Clean Water Act, that number has been cut in half. However, one-third of the nation’s waters still do not meet standards.

    The proposed rule will be open for public comment for 90 days from publication in the Federal Register. The interpretive rule for agricultural activities is effective immediately.

    More information: http://www.epa.gov/uswaters

    Watch Administrator McCarthy’s overview: http://youtu.be/ow-n8zZuDYc

    Watch Deputy Chief of Staff Arvin Ganesan’s explanation: http://youtu.be/fOUESH_JmA0

    From the Denver Business Journal (Caitlin Hendee):

    Gov. John Hickenlooper joined 15 GOP senators Thursday to urge the Obama administration to reconsider a rule that would allow the Environmental Protection Agency (EPA) to regulate marshes, ponds and streams in states…

    Hickenlooper expressed concern to federal officials that the rule change would stonewall the state’s ability to manage key water systems, and could negatively impact the Colorado economy.
    The rule-change would give the EPA and the Army Corps of Engineers clarification on what wetlands and waters they can manage and regulate, such as asking the state to pass a water-quality certification…

    Hickenlooper’s worry was expressed by 15 GOP Senators in a letter sent to the Obama administration that faulted the EPA for asking for the ability to regulate the small water systems before a government peer-reviewed scientific assessment was complete. The senators are concerned about the power invoked by the Clean Water Act and the impact it might have on drought management in several Western states…

    The EPA’s draft scientific assessment, used to inform the proposed rule, will be reviewed and completed at the end of this year or early next year.

    From Water Online (Sara Jerome):

    Conservatives and industry players are skeptical of the proposed rule. Critics are describing it “as a government land grab,” according to a Fox News report. “The proposal immediately sparked concerns that the regulatory power could extend into seasonal ponds, streams, and ditches, including those on private property.”

    “The…rule may be one of the most significant private property grabs in U.S. history,” said Louisiana Sen. David Vitter, the top Republican on the Senate Environment and Public Works Committee, in the Fox News report.

    Bloomberg BNA reported: “All natural and artificial tributaries and wetlands that are adjacent to or near larger downstream waters would be subject to federal Clean Water Act protections.”

    “The agencies also included an interpretive rule, immediately effective, that clarifies that the 53 specific conservation practices identified by the Agriculture Department’s Natural Resources Conservation Service to protect or improve water quality won’t be subject to dredge-and-fill permits under Section 404 of the Clean Water Act,” the report said.

    One thing seems clear: This proposal will probably land the government in court. “The regulatory action might provoke legal challenges from several economic sectors—including the agriculture, construction and energy industries. Opponents say the rules could delay projects while permits are sought for dredging, filling, or drainage in more areas,” the Wall Street Journal reported.

    But proponents of the rule said it’s a no-brainer. “The rule simply clarifies the scope of jurisdiction of the Clean Water Act, ending years of confusion and restoring fundamental protections to waters that serve as the drinking supply for 117 million Americans,” said Trip Van Noppen, president of Earthjustice, a nonprofit public-interest law group, in the New York Times.

    From the Associated Press (Hope Yen) via ABC News:

    Industry groups and more than a dozen GOP senators are urging the Obama administration to reconsider plans to regulate many of the nation’s streams and wetlands, saying the proposed rule hurts economic activity and oversteps legal bounds.

    In a letter Thursday, the senators faulted the Environmental Protection Agency for announcing a proposed rule last week before the government’s peer-reviewed scientific assessment was fully complete. They are calling on the government to withdraw the rule or give the public six months to review it, rather than the three months being provided.

    The senators’ move puts them among several groups — from farmers and land developers to Western governors worried about drought management — in expressing concern about a long-running and heavily litigated environmental issue involving the Clean Water Act that has invoked economic interests, states’ rights and presidential power.

    The letter was led by Sen. Pat Toomey, R-Pa., and signed by 14 other GOP senators.

    “We believe that this proposal will negatively impact economic growth by adding an additional layer of red tape to countless activities that are already sufficiently regulated by state and local governments,” the letter to EPA chief Gina McCarthy said.

    Alisha Johnson, the EPA’s deputy associate administrator for external affairs and environmental education, said the EPA’s draft scientific assessment, used to inform the proposed rule, was being reviewed and wouldn’t be complete until the end of this year or early next year. The EPA rule will not be finalized until the scientific assessment is fully complete, and will take into account public comments, she said.

    From The Greeley Tribune:

    The U.S. Environmental Protection Agency and U.S. Army Corps of Engineers on [March 25] released a proposed rule to clarify protection under the Clean Water Act for streams and wetlands that form the foundation of the nation’s water resources.

    The agencies, according to an EPA news release, are launching a robust outreach effort over the next 90 days, holding discussions around the country and gathering input needed to shape a final rule.

    Determining Clean Water Act protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006.

    The proposed rule also preserves the Clean Water Act exemptions and exclusions for agriculture. EPA and the Army Corps have coordinated with the U.S. Department of Agriculture to develop an interpretive rule to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements.

    Any ag activity that does not result in the discharge of a pollutant to waters of the U.S. still does not require a permit.

    From The Denver Post (Bruce Finley):

    Thousands of miles of Colorado streams would gain stricter protection under a new approach the Obama administration unveiled this week. The goal is to prevent further fouling, filling-in and dredging of streams, tributaries and wetlands by requiring polluters to obtain permits. The Environmental Protection Agency and U.S. Army Corps of Engineers proposed the change.

    Supreme Court decisions in 2001 and 2006 forced federal authorities trying to contain pollution to first prove a stream is linked with “navigable waters.” The new approach would allow regulation of all flowing waters, including temporary streams — while preserving exemptions for agriculture. Just how many more streams are likely to be regulated remains unclear.

    “I don’t know what the actual number is,” regional EPA administrator Shaun McGrath said Wednesday. But he said the new rule will clear up uncertainty about what waters the EPA has jurisdiction over under the Clean Water Act.

    EPA data show that 77,850 miles of waterways in Colorado are temporary — only flowing seasonally or during rain — and are deemed at risk because it’s not clear whether polluters can be controlled.

    “Clean water’s important for my business,” said Jonathan Kahn, owner of Confluence Kayaks. “This matters. Perception is important. If people feel like your water quality is bad, they’re less likely to book a vacation.”

    Environment groups urged swift passage.

    “This isn’t going to mean there will never be a spill or that polluters will never get away with illegal dumping. But it will mean the EPA can actually go out and regulate a huge amount of waterways,” Environment Colorado water campaign director Kim Stevens said.

    But Colorado Gov. John Hickenlooper, chairman of the Western Governors Association, warned federal officials that the rule change “could impinge upon state authority in water management” and called for better EPA consultation with states.

    Hickenlooper did not take a position on stricter protection. “We are concerned that states were not involved and the governor will withhold judgment until we engage Colorado’s water stakeholders,” spokeswoman Denise Stepto said.

    The American Farm Bureau and land developers oppose the change, saying it would impose unnecessary burdens on their activities. However, Rocky Mountain Farmers Union president Kent Peppler sent a letter to federal authorities applauding their efforts to make sure the rule would exclude ditches, ponds and irrigation systems — preserving farming and forestry exemptions.

    “There is no disagreement among America’s ranchers and farmers that clean water is critical to our ability to produce food and fiber for the nation,” Peppler said.

    The proposed change faces 90 days of public comment and possible review by Congress, which could take months.

    Here’s a release from Earth Justice:

    [March 25] the Environmental Protection Agency (EPA) proposed a rule to restore long-standing Clean Water Act protections to streams and many wetlands across the country. These protections, which stood for decades since Congress passed the Clean Water Act in 1972, were dismantled in the last decade by two Supreme Court decisions that created confusion about how to interpret which water bodies should be covered under the Clean Water Act and by policies of the George W. Bush administration that removed longstanding protections from many streams and wetlands. As a result, 59 percent of America’s streams and 20 million acres of wetlands were left vulnerable to toxic pollution.

    The new rule reinstates protections for many of those waters based on an analysis of thousands of peer-reviewed scientific studies conducted by an EPA independent science advisory panel last year. The proposed rule must now be opened for public comment before the Obama Administration can move forward with finalizing it.

    The following is a statement from Earthjustice President Trip Van Noppen:

    “We applaud the EPA for proposing a rule that would reinstate clean water protections for streams and wetlands that supply the drinking water of 117 million Americans.

    “Unfortunately, for the last decade while these protections have lapsed, we have seen the consequences of not protecting our waters. Today, more than 55 percent of our rivers and streams are in ‘poor’ condition, considered unfit for drinking, swimming, or fishing.

    “As the West Virginia chemical spill shows, the cost of not having clean water is too great a price to pay.

    “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.”

    More Environmental Protection Agency coverage here.

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