More waterways likely protected under new EPA rule

The controversial Clean Water Act rule protects tributaries with any sign of water, no matter the flow.

 

The Environmental Protection Agency and US Army Corps of Engineers released a long-awaited rule in late May that defines which streams and wetlands will be protected under the federal Clean Water Act.

"Too many of our waters have been left vulnerable to pollution," President Obama said in a statement. “This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable.”

Congressional Republicans and some industry groups attacked the rule as an overreach by the administration that would hurt businesses and job growth.

But EPA administrator Gina McCarthy said given the impacts of climate change on water resources, such as drought in the West, “it’s more important than ever to protect the clean water that we have.”

EPA's new rule would protect tributaries that flow only part of the year. Las Cruces Arroyo in New Mexico.
Significantly for the arid West, the rule protects tributariesno matter how frequently water flows in themas long as they have signs of flow such as beds, banks and high water marks.  Nearby wetlands and ponds also would be protected. Ditches would be protected only if they behave like tributaries.

“If you still look and act like a stream, you’re a stream,” McCarthy said in a conference call with reporters.

Some regionally specific water bodies such as prairie potholes and western vernal pools in California would be protected, but most playas would not, according to McCarthy. Playas, flat desert basins that at times become shallow pools, would be covered only if they are within a 100-year floodplain, or are near or flow into a stream, its tributaries or adjacent wetlands.

Most desert playas, such as this one in Colorado, would not be protected.
Courtesy USFWS
Opponents and supporters of the rule differed over whether this action expands the scope of the Clean Water Act. Some ephemeral streams, waters and wetlands were federally protected before a 2001 Supreme Court decision, under the justification that migratory birds use them; the new rule, in practice, likely will increase the number of waters and wetlands that receive federal protection.

The rule is intended to clear up confusion stemming from the 2001 Supreme Court ruling and another in 2006 that narrowed the scope of the Clean Water Act and sparked a lot of questions and litigation over which wetlands and streams were covered under federal law as Waters of the United States. Uncertainty following these rulings left many waterways and wetlands “vulnerable to pollution,” said Jo-Ellen Darcy, the assistant secretary of the Army for civil works.

“For ecologists and people who care about ecosystems, it’s a big victory,” said Ellen Wohl, a professor of geosciences at Colorado State University. “There’s enormous scientific agreement that little streams are very important.”

Streams that do not contain water year-round still play important roles, providing nutrients, sand and organisms for bigger rivers.

“From an environmental perspective, it’s wonderful,” Wohl added. “Scientifically, it’s very obvious these streams need to be protected.”

At issue is whether companies and individuals have to get permits before they pollute, fill in or destroy a waterway or wetland. In the wake of the 2001 and 2006 Supreme Court rulings, decisions about whether permits were necessary often have been subject to lengthy case-by-case consideration. The new rule is supposed to make it clear when wetlands and waterways are protected so case-by-case determinations are needed only rarely.

McCarthy said the rule would create no new permit requirements for businesses, but industry representatives disagreed, arguing that by expanding the scope of the waters and wetlands covered by federal law, the rule will increase bureaucratic burdens on all kinds of companies.

Industry groups predicted the rule would raise costs for people building homes and hurt job growth.

“EPA’s final water rule will needlessly raise housing costs and add more regulatory burdens to landowners and industries that rely on a functioning permitting process to spur job and economic growth,” said Tom Woods, chairman of the National Association of Home Builders.

Woods said the rule goes far beyond what Congress intended to be covered as Waters of the US by the 1972 Clean Water Act, and predicted that it soon would end up back in court.

A more pressing challenge to the rule likely will be legislative efforts in Congress to block it, including a bill shepherded by Sen. John Barrasso, R-Wyoming, which would cancel EPA’s new rule and require the agency to rewrite a more limited rule that would exclude many types of waterways and wetlands.

"Under this outrageously broad rule, Washington will have control over how family farmers, ranchers and small businesses not only use their water, but also their privately owned land," Barrasso said in a statement. "Today's action ensures further momentum for our bill that says yes to clean water -- and no to extreme bureaucracy."

Elizabeth Shogren is HCN's DC Correspondent.