May 27, 2015Finalized Clean Water Rule released
“We are undertaking a thorough analysis of the final WOTUS (Waters of the United States) rule to determine whether the Environmental Protection Agency listened to the substantive comments farmers and ranchers submitted during the comment period,” Bob Stallman, president of the American Farm Bureau Federation, said in a statement.
“Based on EPA’s aggressive advocacy campaign in support of its original proposed rule – and the agency’s numerous misstatements about the content and impact of that proposal – we find little comfort in the agency’s assurances that our concerns have been addressed in any meaningful way,” Stallman said. “The process used to produce this rule is flawed. The EPA’s proposal transgressed clear legal boundaries set for it by Congress and the courts and dealt more with regulating land use than protecting our nation’s valuable water resources.
“EPA’s decision to mount an aggressive advocacy campaign during the comment period has tainted what should have been an open and thoughtful deliberative process,” Stallman said. “While we know that farmers and ranchers were dedicated to calling for substantial changes to the rule, we have serious concerns about whether their comments were given full consideration.
“We expect to complete our review in the next few days,” Stallman said. “We are looking in particular at how the rule treats co-called ephemeral streams, ditches, small ponds and isolated wetlands. We will decide on an appropriate course of action once that review is complete.”
The Clean Water Rule will be effective 60 days after publication in the Federal Register.
Drinking water for 117 million Americans will be protected under the new government rules shielding small streams, tributaries and wetlands from pollution and development, the Obama administration said.
The rules issued are designed to clarify which smaller waterways fall under federal protection.
Two Supreme Court rulings had left the reach of the Clean Water Act uncertain.
EPA Administrator Gina McCarthy said the rule will only affect waters that have a “direct and significant”connection to larger bodies of water downstream that are already protected. The EPA has said 60 percent of the nation’s streams and waterways are vulnerable, and these rules clarify which of those waters are protected. The regulations would only kick in if a business or landowner takes steps to pollute or destroy those waters.
President Barack Obama said in a statement that the 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.”
The rules have already run into deep opposition from farm groups and the Republican-led Congress. The House voted to block the regulations earlier this month, and a similar effort is underway in the Senate.
Echoing the concerns of farm groups, lawmakers have said the rules could greatly expand the reach of the clean water law and create confusion among officials in the field as to which bodies of water must be protected. Farmers wary of more federal regulations are concerned that every stream, ditch and puddle on their private land could now be subject to federal oversight.
According to news reports, after the rule was released, Republican Sen. James Inhofe of Oklahoma, chairman of the Senate Environment and Public Works Committee, said his panel will consider the Senate bill to force the EPA to withdraw and rewrite the rules this summer and “continue our work to halt EPA’s unprecedented land grab.”
McCarthy has acknowledged the proposed rules issued last year were confusing and said the final rules were written to be more clear. She said the regulations don’t create any new permitting requirements for agriculture and even adds some new exemptions for artificial lakes and ponds and water-filled depressions, among other features.
These efforts were “to make clear our goal is to stay out of agriculture’s way,”McCarthy said in a blog on the EPA website.
An EPA news release said the rule “ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry. The rule is grounded in law and the latest science, and is shaped by public input. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.”
“For the water in the rivers and lakes in our communities that flow to our drinking water to be clean, the streams and wetlands that feed them need to be clean too,” said EPA Administrator Gina McCarthy. “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.”
“Today’s rule marks the beginning of a new era in the history of the Clean Water Act,” said Assistant Secretary for the Army (Civil Works) Jo-Ellen Darcy. “This is a generational rule and completes another chapter in history of the Clean Water Act. This rule responds to the public’s demand for greater clarity, consistency, and predictability when making jurisdictional determinations. The result will be better public service nationwide.”
The EPA news release indicated “people need clean water for their health: About 117 million Americans – one in three people – get drinking water from streams that lacked clear protection before the Clean Water Rule. America’s cherished way of life depends on clean water, as healthy ecosystems provide wildlife habitat and places to fish, paddle, surf, and swim. Clean and reliable water is an economic driver, including for manufacturing, farming, tourism, recreation, and energy production. The health of our rivers, lakes, bays, and coastal waters are impacted by the streams and wetlands where they begin.
Protection for many of the nation’s streams and wetlands has been confusing, complex, and time-consuming as the result of Supreme Court decisions in 2001 and 2006. EPA and the Army are taking this action today to provide clarity on protections under the Clean Water Act after receiving requests for over a decade from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists, and the public for a rulemaking.
According to EPA, in developing the rule, “the agencies held more than 400 meetings with stakeholders across the country, reviewed over one million public comments, and listened carefully to perspectives from all sides. EPA and the Army also utilized the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies that showed that small streams and wetlands play an integral role in the health of larger downstream water bodies.
Specifically, according to EPA, the Clean Water Rule:
“· Clearly defines and protects tributaries that impact the health of downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
· Provides certainty in how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.
· Protects the nation’s regional water treasures. Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
· Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.
· Maintains the status of waters within Municipal Separate Storm Sewer Systems. The rule does not change how those waters are treated and encourages the use of green infrastructure.
· Reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.”
“A Clean Water Act permit is only needed if a water is going to be polluted or destroyed,” the EPA news release stated. “The Clean Water Rule only protects the types of waters that have historically been covered under the Clean Water Act. It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows, or tile drains. It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field. The Clean Water Rule addresses the pollution and destruction of waterways – not land use or private property rights.
“The rule protects clean water necessary for farming, ranching, and forestry and provides greater clarity and certainty to farmers about coverage of the Clean Water Act. Farms across America depend on clean and reliable water for livestock, crops, and irrigation. The final rule specifically recognizes the vital role that U.S. agriculture serves in providing food, fuel, and fiber at home and around the world. The rule does not create any new permitting requirements for America’s farmers. Activities like planting, harvesting, and moving livestock have long been exempt from Clean Water Act regulation, and the Clean Water Rule preserves those exemptions.”