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EPA and Army Corps Finalize Rule Defining “Waters of the United States”

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Amy Corps) finalized the Clean Water Rule on May 27, 2015. Under this rule, streams and wetlands that are scientifically significant for downstream water quality and water resource foundations are protected.

The need for the rule arose due to Supreme Court decisions in 2001 and 2006 that lead to the confusion of protection qualifications of 60 percent of the nation’s streams and wetlands. (For additional background and the information on the initial process, see “EPA and Army Corps Release Controversial Proposed Rule on the Definition of ‘Waters of the United States,’”JOW March 24, 2014).

With the passing of the new rule, bodies of water within the U.S. are more precisely defined in order to facilitate the understanding and improve the consistency within the law concerning water, which will make permitting cheaper, easier  and quicker for businesses, industries and government agencies. This rule only clarifies previous rulings and does not create new requirements within it.

EPA Administrator Gina McCarthy said, “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.”

According to the EPA, the Clean Water Rule:

  • Clearly defines and protects tributaries that impact the health of downstream waters
  • Provides certainty in how far safeguards extend to nearby waters
  • Protects the nation’s regional water treasures
  • Focuses on streams, not ditches
  • Maintains the status of waters within Municipal Separate Storm Sewer Systems
  • Reduces the use of case-specific analysis of waters

Overall, the new rule only covers bodies of water that have been historically protected under the Clean Water Act and does not interfere with farming, ranching and forestry.

The final rule also provides a list of bodies of water that are excluded from the rule:

  • Waste treatment systems
  • Prior converted cropland
  • Ditches
    • … with ephemeral or intermittent flow that are not a relocated tributary or excavated in a tributary
    • … “with intermittent flow that are not drain wetlands”
    • … “that do not flow, either directly or through another water, into a water identified” in the above three points
  • Temporary and/or artificial bodies
    • Artificially irrigated areas that otherwise would return to dry land without irrigation
    • “Artificial, constructed lakes and ponds created in dry land”
    • “Artificial reflecting pools or swimming pools created in dry land”
    • “Ornamental waters created in dry land”
    • Incidental water-filled depressions due to mining or construction
    • “Erosional features”
    • Puddles
  • Groundwater
  • Storm water control features
  • Wastewater recycling structures

Along with expanding the excluded list of waters, other differences between the proposed and final rule are the definition of tributary and adjacent wetlands/waters.

Supporters from the environmental community have expressed positive reactions towards the new rule.

“Thanks to the Obama Administration, the drinking water supplies of 117 million Americans will gain strong safeguards against pollution. These long-overdue protections also will ensure cleaner wetlands, headwaters, brooks and streams that we use for swimming, fishing and other recreational activities. It was a long, hard slog to reach this day. Now we will redouble our efforts to defend the new Clean Water Rule against developers, big polluters and their allies in Congress who want to kill it,” said Rhea Suh, President of the Natural Resources Defense Council.

“When more than half of this country’s rivers and streams are in poor condition, unfit for swimming, drinking or fishing, it is time to finally realize the original promise of the Clean Water Act. While the state of U.S. waters has worsened, the Clean Water Act has been blunted by a decade of confusion and inaction”, said Earthjustice President Trip Van Noppen. “We applaud the Obama administration and the EPA for finalizing this commonsense and vital rule that will end the confusion and further the goal of cleaning up our waters. People in Toledo, Charleston, WV, and Montana City know the stakes all too well, but all our lakes, rivers, streams, and beaches across the country will be cleaner for it.”

On the other hand, the agricultural community strongly opposed the new rule.  The American Farm Bureau Federation (“AFBF”) has launched a campaign called “Ditch the Rule” and has completed its own analysis rebutting many of EPA’s claims and ultimately arguing that the rule is more about regulating land use than water quality and noting that the final rule is actually more expansive than the draft rule.

“Our analysis shows yet again how unwise, extreme and unlawful this rule is,” American Farm Bureau Federation President Bob Stallman said. “Our public affairs specialists and legal team have assembled the best analysis available anywhere, and their conclusions are sobering: Despite months of comments and innumerable complaints, the Waters of the U.S. proposal is even worse than before.”

Additional opposition has come from the halls of Congress.  Senator John Barrasso (R–WY), along with co-sponsors Alexandar Lamar (R–TN), Roy Blunt (R–MO), John Boozman (R-AR), Shelley Moore Capito (R–WV) and Bill Cassidy (R–LA), introduced a bill in the Committee on Environment and Public Works in an attempt to encumber the EPA’s final rule. The Federal Water Quality Protection Act (S. 1140), would require that the EPA reevaluate what bodies of water would be protected using the phrase “traditional navigable waters” instead of “waters of the United States.”


Written by Stratecon Staff