Announcement was met aversion and accolades.
The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) have announced a proposed rule to clarify the definition of “waters of the United States” under the Clean Water Act (CWA).
EPA and Army Corps emphasize that no new types of water are protected under the proposed rule, and they maintain that the proposed rule provides clarity and complies with the Supreme Court’s more narrow reading of CWA jurisdiction.
Under U.S. Supreme Court decisions in Solid Water Agency of North Cook County v. U.S. Army Corps of Engineers (SWANCC) in 2001 and Rapanos v. United States (Rapanos) in 2006, determining whether streams and wetlands were within the jurisdication of the CWA became confusing and complex—and the agency was making determinations on a case-by-case basis far too frequently. The proposed rule would reduce this confusion and clarify what types of water are covered by the CWA by explicitly including most seasonal and rain-dependent streams and wetlands near rivers and streams as “waters of the United States” under the CWA, and limiting case-specific analysis to other water where an evaluation is required to determine whether it has a significant connection to a downstream source.
The proposed rule also provides a list of types of water that are explicitly excluded from the definition of “waters of the United States,” including
- Ponds or lagoons that are part of waste treatment systems
- Prior converted cropland
- Upland ditches
- Ditches that do not contribute flow to a CWA-protected water source
- Artificially irrigated upland cropland
- Certain artificial lakes and ponds, as well as reflecting pools, swimming pools and small ornamental waters
- Water-filled depressions incidentally created during construction activity
- Gullies, rills and non-wetland swales.
The EPA and Army Corps cost-benefit analysis finds that benefits of the proposed rule—which include reducing flooding, filtering pollution, providing wildlife habitat, supporting hunting and fishing and recharging groundwater—are have a value of $388 million to $514 million. They compare this to the cost of $162 million to $279 million that will be expended to mitigate impacts to streams and wetlands and to implement measures that will reduce pollution to waterways.
In addition, because the certainty provided by the proposed rule would increase efficiency in determining whether a particular waterway is protected by the CWA, it is expected to save businesses time and money. It is also expected to benefit the agriculture community by retaining existing exemptions and exclusions and by ensuring that certain conservation practices are exempt from notification and permitting requirements.
Despite the anticipated benefits and the agencies’ efforts meet stakeholder demands for clarity, the proposed rule was met with aversion.
The National Rural Electric Cooperative Association (NRECA) argues that the proposed rule would expand the types of the waters covered by the CWA and place undue burden on electric co-ops.
“Such an expansion of Clean Water Act rules would have significant impacts on co-ops by increasing the number and costs of permits needed for distribution and transportation corridor construction and maintenance and substations,” said Kirk Johnson, NRECA senior vice president, government relations.
The National Association of Home Builders, who was among those who advocated for a rule that would provide clarity, claims that the proposed rule “goes too far.” Kevin Kelly, NAHB president and a home builder and developer from Wilmington, DE says,
“EPA was told to make changes to the rule so that everyone understands exactly when a builder needs a federal wetlands permit before turning the first shovel of dirt. Instead, EPA has added just about everything into its jurisdiction by expanding the definition of a ‘tributary’ – even ditches and manmade canals, or any other feature that a regulator determines to have a bed, bank and high-water mark….The agency needs to go back to work on this. We need to protect the environment with a carefully crafted rule, not this hurried, catch-all attempt. Adding this layer of regulation makes the land development process more expensive and time consuming. That’s bad news for home buyers and for the economy.”
Ranking member of the Senate Environment and Public Works Committee David Vitter (R–LA), who has long been critical of the EPA, argues that there is no limit to EPA’s reach under the proposed rule.
“The ‘waters of the U.S.’ rule may be one of the most significant private property grabs in U.S. history,” Vitter said. “Today’s rule also shows EPA picking and choosing the science they use. Peer review of the Agency’s connectivity report is far from complete, and yet they want to take another step toward outright permitting authority over virtually any wet area in the country, while at the same time providing a new tool for environmental groups to sue private property owners.”
In an opinion published the day before EPA and Army Corps announced the new rule, Bob Stallman, President of the American Farm Bureau Federation, also argued that the proposed rule would expand EPA’s reach. Stallman asserts that court-imposed constraints on the definitions of “navigable waters” and “water of the U.S.” would be eliminated allowing EPA jurisdiction over any water “no matter how small or seemingly unconnected to federal interest.” Stallman also believes that the notice and permitting exemptions for agriculture are too narrow to be effective and that the economic analysis is flawed.
Two weeks prior to the release of the proposed rule, the Western States Water Council (WSWC) penned a letter to EPA Administrator Gina McCarthy and Assistant Secretary of the Army (Civil Works) Jo Ellen Darcy providing comments on a draft rule. WSWC makes recommendations or outlines concerns in six areas:
- With EPA’s report on the connectivity of streams of wetlands still under review by the Science Advisory Board, WSWC is concerned that the report will have little influence on the final rule
- WSWC recommends that the proposed rule explicitly defer to state water law regarding the allocation of water and administration of water rights
- WSWC recommends that the proposed rule explicitly exclude groundwater from CWA jurisdiction
- WSWC names additional types of water that should be explicitly excluded from CWA jurisdiction
- While the court-established “significant nexus” test requires connectivity between water sources to be “more than speculative or insubstantial,” WSWC recommends that the rule quantify “significance” to ensure that CWA jurisdiction does not expand to waters that have only minimal connection to protected waters
- WSWC is concern that the rule was developed with too little input from the states.
Upon release of the proposed rule, the Western Governors’ Association submitted a letter to Administrator McCarthy and Assistant Secretary Darcy echoing WSWC’s concerns about the lack of consultation with the states and the potential for the rule to impinge on the states’ authority in water management.
The environmental community extolled the proposed rule.
“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…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,” said Earthjustice President Trip Van Noppen.
Peter Lehner, Executive Director of the Natural Resources Defense Council, said, “This is good news for boaters, anglers, swimmers and families who rely on clean drinking water. EPA took an important step to finally rescue these waters from legal limbo…”
Once the proposed rule has been reviewed by the Office of Management and Budget, it will be published in the Federal Register, and a 90-day public comment will begin.
Written by Marta Weismann