Proposed Rulemaking Could Trigger Federal Requirements for Selected U.S. Waterways

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By Patrick Crow, Washington Correspondent

The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers have proposed a controversial rule that opponents say would greatly expand their regulation of streams and wetlands.

The long-awaited regulation seeks to clarify the jurisdictional reach of the Clean Water Act (CWA) following Supreme Court decisions in 2001 and 2006 regarding the two agencies' jurisdictions over wetlands and streams distant from navigable waterways.

The rulemaking is critical because it would define waters or wetlands that are considered "waters of the U.S." under the CWA. The regulatory jurisdiction would trigger federal requirements, such as permitting, state water quality certification and oil spill response.

EPA Administrator Gina McCarthy said the regulation is needed because 36 states have legal limitations that prevent the agency from covering waters not covered by the CWA.

The agency stressed that the proposed rule "does not protect any new types of waters that have not historically been covered under the CWA and is consistent with the Supreme Court's more narrow reading of CWA jurisdiction."

EPA and the Corps said 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. About 117 million people (one in three Americans) receive their drinking water from public systems that rely in part on these streams.

The proposed rule clarifies that under the CWA:

  • 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. They will be evaluated through a case-specific analysis, although in certain geographic areas, waters may be given protected status without case-specific analysis.
  • The proposed rule preserves the CWA exemptions and exclusions for agriculture. Also, 53 specific agricultural conservation practices will not be subject to Corps Section 404 dredge or fill permits.

EPA said the proposed rule is supported by the latest peer-reviewed science, including a draft scientific assessment that covers more than a thousand pieces of scientific literature. The rule will not be finalized until the final version of that scientific assessment is complete.

Nancy Stoner, acting EPA assistant administrator for water, said the proposed rule will include: all interstate waters, including interstate wetlands; all waters that are currently used for interstate or foreign commerce; the territorial seas; tributaries and impoundments of the above mentioned waters; and all adjacent waters.

The proposed rule does not include new types of waterways that have not historically been covered under the CWA. Further, the draft rule has exemptions for waterways that will not be required to have CWA permits, including those serving waste treatment facilities, converted cropland, ditches that do not have perennial flow, and agricultural activities.

For waterways that are geographically isolated from navigable waterways (known as "other waters"), the rule would adopt the regulatory jurisdiction outlined in the U.S. Supreme Court case Rapanos v. U.S.

EPA will accept public comments on the proposed rule for 90 days. A final rule is not expected until 2015, at the earliest.

Sen. David Vitter (R-La.), the senior Republican on the Environment and Public Works Committee, criticized the regulation, saying it "could significantly expand federal authority over streams, ditches, ponds, and other local water bodies - many of which are located on private property throughout the U.S."

Hal Rogers (R-Ky.), the chairman of the House Appropriations Committee, said the action could expand federal jurisdiction over many thousands of creeks and streams, plus dry beds that "haven't had water in them for decades." He hinted that his committee might try to block the rule through the EPA appropriations process.

Many environmental groups, however, applauded the proposed regulation. Clean Water Action said the rulemaking would "close gaps in protection for nearly 20 million acres of wetlands and half of the nation's small streams. The rule is clear, concise and well supported by both the law and science. It's long overdue."

And Ben Grumbles, president of the U.S. Water Alliance, said, "The proposal is a solid step forward in a field dominated by murky legal waters and political quicksand. You have to start somewhere, though, and this proposal clearly does that. It's hard to say how much of an expansion the proposed rule represents over current practice. Critics and skeptics are correct that it could lead to an increased federal role, but some statements about overreach are over the top."WW

About the Author: Patrick Crow covered the U.S. Congress and federal agencies for 21 years as a reporter for industry magazines. He has reported on water issues for the past 15 years. Crow is now a Houston, Texas-based freelance writer.

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