EPA, Army Release 'Clean Water Rule'

In late May, the long-awaited -- and much-debated -- 'Clean Water Rule' was released by the U.S. Environmental Protection Agency and the U.S. Army. The rule is intended to clarify the types of waterbodies subject to regulation under the Clean Water Act and has been the subject of intense controversy. Supporters fervently believe clarifying the definition of "water of the U.S." is essential for protecting the nation's water resources. Critics are equally passionate that the rule constitutes an overreach of EPA's powers -- a figurative and literal 'land grab'.


By Angela Godwin, Chief Editor

In late May, the long awaited -- and much debated -- 'Clean Water Rule' was released by the U.S. Environmental Protection Agency and the U.S. Army.

The rule is intended to clarify the types of waterbodies subject to regulation under the Clean Water Act and has been the subject of intense controversy. Supporters fervently believe clarifying the definition of "waters of the United States" is essential for protecting the nation's water resources. Critics are equally passionate that the rule constitutes an overreach of EPA's powers -- a figurative and literal 'land grab'.

Nonetheless, at the end of the day, EPA is charged with upholding the federal Clean Water Act, a task that became monumentally more difficult after the SWANCC and Rapanos court decisions (2001 and 2006, respectively). Boiled down, these decisions limited the Clean Water Act to "navigable waterways." But what about wetlands? Or streams that, while not "navigable," still flow into a larger river system?

"For years now, when someone applied for a Clean Water Act permit, the Corps of Engineers has too often had to go through a long, extensive, case-by-case process to determine whether the Clean Water Act applied," explained Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works. "And that was before the permit application could even be processed."

EPA said the new rule, developed over several years, takes into consideration more than 1,200 peer-reviewed studies, feedback from over 400 meetings with stakeholders, and more than a million public comments. EPA maintains that the rule only protects the types of waters that have historically been covered under the Clean Water Act and does not add any new requirements for agriculture, one of the rule's most vocal opponents.

"It does not interfere with private property rights or address land use," said EPA Administrator Gina McCarthy, "and it does not regulate any ditches unless they function as tributaries." She added that the rule does not apply to groundwater or shallow subsurface flow, does not cover drain tiles, and does not change policy on irrigational water transfers.

The ag community has been particularly critical of the new rule, saying that the process used to create it "was flawed." But McCarthy reiterated that "this rule will not get in the way of agriculture. In fact, it specifically recognizes the crucial role that farmers play." Agricultural activities, like plowing, harvesting, and moving livestock across a stream, have long been exempt from federal clean water regulations, she said. "This rule will not change that."

The farming community, however, remains skeptical. "We are undertaking a thorough analysis of the final WOTUS rule to determine whether the Environmental Protection Agency listened to the substantive comments farmers and ranchers submitted during the comment period," said Bob Stallman, president of the American Farm Bureau Federation, in a prepared statement. "We will decide on an appropriate course of action once that review is complete."

Acknowledging other industrial sectors, McCarthy underscored the importance of clean water to the larger economy. "Major sectors from manufacturing and energy production to food service, tourism and recreation depend on clean water to function and flourish," she stated. She recalled the incident in Toledo, Ohio, last year as an example of the significant impact a water contamination event can have on local businesses.

There is no shortage of commentary both for and against the new rule, but if you are interested in finding out whether it is likely to impact you and your business, I would encourage you to read the rule for yourself. You can find it -- and other resources -- at epa.gov/cleanwaterrule.

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