As Big As It Gets: Clean Water Act Rulemaking

By Mark Scharfenaker

Everyone seriously interested in water quality throughout the United States has 90 days to let EPA, the Army Corps of Engineers and federal lawmakers know what they think about the agency’s newly proposed rule intended to clarify just where in a watershed the protections of the Clean Water Act cease to apply.

This long-awaited rulemaking aims to define CWA jurisdiction over streams and wetlands distant from “navigable” waters of the United States…the lines of which were muddied by recent Supreme Court rulings rooted in a sense that perhaps EPA and the Corps had strayed too far in requiring CWA dredge-and-fill permits for such “waters” as intermittent streams and isolated potholes.

This rule is as big as it gets in respect to protecting waterways from nonfarm pollutant discharges, and the proposal has not calmed the conflict between those who want the jurisdictional line closer to navigable waters and those who want it to reach deep into and through every watershed.

EPA chief Gina McCarthy asserts that it is “simply not the case” that the rule would expand the reach of the CWA. “Our proposed rule will not add to or expand the scope of waters historically protected under the Clean Water Act. In the end — the increased clarity will save us time, keep money in our pockets, cut red tape, give certainty to business, and help fulfill the Clean Water Act’s original promise: to make America’s waters fishable and swimmable for all,” she wrote in an Op-Ed piece.

“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.”

At the state level, both the Western Governors Association and the Western States Water Council have expressed concerns about the rule.

Western Governors assert that “as co-regulators of water resources, states should be fully consulted and engaged in any process that may affect the management of their waters.” WGA adds that “the conversations to date have not been sufficiently detailed to constitute substantive consultation” and “Western Governors strongly urge both EPA and the Corps to engage states as authentic partners in the management of Western waters.”

Top-shelf environmental organizations are backing the rule, while early Republican voices are sounding alarms.

Peter Lehner, executive director of the Natural Resources Defense Council, made the following statement: “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. Even though these are common-sense protections, the polluters are sure to attack them. People who care about clean water need to make their voices heard in the comment period.”

Trout Unlimited and Ducks Unlimited also voiced support for the rule. “Today’s proposal speaks to the heart of the Clean Water Act—making rivers more fishable and swimmable,” said Chris Wood, president and CEO of Trout Unlimited. “The waters affected by today’s proposal provide vital spawning and rearing habitat for trout and salmon. Simply stated, the proposal will make fishing better, and anglers should support it. Restoring protections to these waters ensures healthy habitat for fish and a bright future for anglers.”

Sen. James Inhofe, R-Okla., however, minced no words in blasting the rulemaking: “Today’s proposed rule by the EPA and Corps of Engineers is a massive expansion of power over the nation’s water resources. The Clean Water Act is written to include only navigable waters, but with this new rule, the agencies are giving themselves the authority to regulate everything from the nation’s largest rivers to small irrigation ditches found on family farms in Oklahoma. This rule will only make the agencies’ authority more confusing and difficult to navigate, and we should not underestimate the devastating impact this rule could have if it becomes final. It shows that President Obama is no friend of private property rights or Oklahoma’s economy.”

In the House, Rep. Bud Shuster, R-Pa., remarked: “The last thing people need is for the EPA to come knocking on their doors telling them their ponds are too dirty or their puddles are too muddy. It violates our personal freedoms, and puts an unnecessary burden on both families and businesses alike. This is a massive power grab by the government, and would give the EPA regulatory power over nearly every body of water in America. We should not allow that to happen.”

Bottom line is that the proposed rule is now ready for prime time, and EPA and the Corps have promised a nationwide effort to collect input from all sides, which hopefully will finally produce a rule that finds the sweet spot between the extremes without triggering a new round of legal challenges that will keep landowners, politicians, environmentalists and regulatory authorities…not to mention the well-being of ducks, geese, fish and our riparian habitats…in a continued state of uncertainty.

As McCarthy said so succinctly, “we need everyone to be part of the conversation” to get this rule right.

Mark Sharfenaker has been a writer and editor for the American Water Works Association since 1986 and the AWWA website editor since 2008, his contributions to the Your Water Colorado Blog include The Value of Water. He moved to Colorado in 1982 after a 10-year stint in Montana, where he earned an undergraduate degree in Journalism at the University of Montana and learned the joys of fly fishing and the wonders of western waters.

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