Article: The Clean Water Rule Intended to Curb Pollution

Here is a fact about water pollution – water covers over 70 percent of the Earth’s surface and is a very important resource for people and the environment. Water pollution affects drinking water, rivers, lakes and oceans all over the world. This consequently harms human health and the natural environment.

The Obama administration finalized new regulations, the Clean Water Rule (CWR), on 27 May 2015 which will protect streams, rivers, and wetlands that provide drinking water to more than 117 million Americans. For “drinking water to be clean the streams and wetlands that feed them need to be clean, too” the Environmental Protection Agency (EPA) Administrator, Gina McCarty said in a statement.

These changes intended to curb pollution in the nation’s waterways. It’s also meant to clarify just which waters the EPA can regulate inside the United States.

The CWR extends the Clean Water Act of 1972, which allowed the government to regulate large bodies of water – such as the Mississippi River and the Puget Sound – as well as the waterways that feed into them. However, subsequent court cases have created confusion regarding the government’s power to regulate smaller bodies of water, since it’s unclear how the government should define connected waterways, some expressed their concerns.

Under the new rule, the EPA will monitor all tributaries that feature flowing water. If a body of water is 1,500 feet away from another body that is already protected under the Clean Water Act, it will also be protected by pollution regulations.

“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,” President Obama said.

Dubbed the “Clean Water Rule,” the new regulations take aim at protecting the streams and wetlands that may not necessarily feed the country’s large water sources but are still vital to providing Americans drinking water. According to the New York Times, the rule will cover 60 percent of the bodies of water in America.

Too many of our waters have been left vulnerable to pollution,” President Barack Obama said in a statement on the rule, adding thatOne in three Americans now gets drinking water from streams lacking clear protection.

Notably, the EPA said that existing exemptions for agriculture will remain in place. Water bodies that are still and not flowing, such as ditches, will also remain outside of the EPA’s jurisdiction.

“The final rule doesn’t create any new permitting requirements for agriculture, maintains all previous exemptions and exclusions, and even adds exclusions for features like artificial lakes and ponds, water-filled depressions from construction, and grass swales – all to make clear our goal is to stay out of agriculture’s way,” McCarthy and Darcy wrote.

The new regulations are due to take effect 60 days after publication.

While environmentalists were delighted with the announcement, critics said it would hurt farmers and energy production. Consequently, the changes have been opposed by farm groups, land developers, and others who warned they would extend federal regulations into inland wetlands and ponds that go well beyond the traditional scope of federal oversight. At the same time, critics in congress have vowed to block the changes and opponents have said they are planning litigation to challenge many of their provisions.

First of all, perhaps we should look into the question – why the proposed Clean Water Rule is important: Clean water upstream is needed to have healthy communities downstream. The health of rivers, lakes, bays, and coastal waters depend on the streams and wetlands where they begin. Streams and wetlands provide many benefits to communities by trapping floodwaters, recharging groundwater supplies, filtering pollution, and providing habitat for fish and wildlife. For instance:

  • People depend on clean water for their health: About 117 million Americans — one in three people – get drinking water from streams that were vulnerable to pollution before the CWR;
  • American cherished way of life depends on clean water: Healthy ecosystems provide wildlife habitat and places to fish, paddle, surf, and swim; and
  • American economy depends on clean water: Manufacturing, farming, tourism, recreation, energy production, and other economic sectors need clean water to function and flourish.

The EPA and the US Department of the Army have prepared a final rule revising the definition of the regulatory term “waters of the United States.” This term identifies waters which are, and are not, subject to the Clean Water Act. The agencies have worked to develop this rule in light of the Act, science, Supreme Court decisions, public comments, and the agencies’ experience and technical expertise.

The final rule includes eight categories of jurisdictional waters, maintains existing exemptions for certain categories of activities and waters, and adds additional exclusions for categories of waters that are never covered under the Act. The final rule does not establish regulatory requirements and, therefore, does not impose direct costs on any entity. Instead, it is a definitional rule that clarifies the scope of “waters of the United States.” For instance, the CWR:

  • 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; and
  • 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.

It is important to keep it in mind that:

  • The rule protects clean water without getting in the way of farming, ranching, and forestry: Farms across America depend on clean and reliable water for livestock, crops, and irrigation. Activities like planting, harvesting, and moving livestock have long been exempt from Clean Water Act regulation, and the CWR doesn’t change that. The CWR provides greater clarity and certainty to farmers and does not add any new requirements or economic burden on agriculture; and
  • The rule only protects waters that have historically been covered by the Clean Water Act:  It does not interfere with or change private property rights, or address land use. It does not regulate most ditches or regulate groundwater, shallow subsurface flows or tile drains. It does not change policy on irrigation or water transfers. It does not apply to rills, gullies, or erosional features.

People who are very quick to criticize the rule should know that the proposed CWR protects only the types of waters that historically have been covered under the Clean Water Act. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions. 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 protects waters from pollution and destruction – it does not regulate land use or affect private property rights. These statements are supported by the text of the rule and its preamble.

Here are some facts about the CWR as it does not regulate:

  • Most Ditches;
  • Erosional Features;
  • Groundwater;
  • Farm Ponds;
  • Land Use;
  • Puddles; and
  • Water in Tile Drains.

Those who are concerned should learn that the proposed CWR does not change the existing policy on:

  • Exemptions for Agriculture;
  • Irrigation;
  • Stormwater; and
  • Water Transfers.

Furthermore, as a clarification that the proposed CWR does not affect areas previously excluded from jurisdiction, including:

  • Artificially irrigated areas that are otherwise dry land;
  • Artificial lakes or ponds constructed in dry land for purposes like aesthetics or irrigation;
  • Water-filled depressions created as a result of construction activity;
  • Pits excavated in dry land for fill, sand, or gravel;
  • Erosional features such as gullies, rills and non-wetland swales; and
  • Waste treatment systems (including treatment ponds or lagoons):
    • Wastewater recycling structures created in dry land: detention and retention basins built for wastewater recycling, groundwater recharge basins, and percolation ponds built for wastewater recycling, and water distributary structures built for wastewater recycling; and
    • Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land.

American Businesses depend on clean, reliable water to operate. Here are a few examples:

  • Manufacturing companies use more than 9 trillion gallons of fresh water every year;
  • The beverage industry uses about 12 billion gallons of water annually to produce products valued at $58 billion. Brewers depend on clean water, which is more than 90 percent of beer;
  • Fishing is a $48 billion per year industry that supports a million family wage jobs. About 33 million Americans go fishing each year;
  • Fishermen, hunters, and wildlife watchers spent $144.7 billion in 2011 on activities, equal to 1 percent of the Gross Domestic Product;
  • Aquatic recreation is big business. This includes kayaking, canoeing, rafting, surfing, and swimming. About 19 million people participate in paddling each year, spending $86 billion on gear and trips; and
  • Agriculture across America depends on clean and reliable water for livestock, crops, and irrigation.  The Clean Water Rule provides greater clarity and certainty to farmers and does not add economic burden on agriculture.

Here is how fishing and hunting depend on clean water:

About 33 million Americans go fishing each year, spending 554 million days by streams, lakes, and rivers. Healthy fish cannot be had without clean water. Headwater streams protected by the Clean Water Rule are vital to downstream habitat of fish. These are examples of where protection of seasonal or rain-dependent streams are important to fishing:

  • In California, 64 percent of stream miles in salmon/steelhead range are seasonal or rain dependent;
  • In Colorado, 55 percent of stream miles within native trout historical range are seasonal or rain dependent; and
  • In Montana, about half of the stream miles within native trout range are seasonal or rain dependent.

Hunters know that streams and wetlands are critical habitat for waterfowl, birds, and other wildlife. Additionally, the CWR protects the prairie potholes of the US Midwest where they provide critical nutrient capture and flood protection for downstream waters. The prairie potholes are vital to hunting in America, as they play host to 18 species of waterfowl. They also support 96 species of songbirds, 36 species of water birds, 17 species of raptors and 5 species of upland game birds. The rule also ensures that fields flooded for rice are exempt and can be used for water storage and bird habitat.

Aquatic recreation is central to people’s lives and livelihoods, and clean water is essential for their health and jobs. This includes kayaking, canoeing, rafting, surfing, and swimming. Americans who participate in these sports can’t do it safely without clean water. Each year 19 million people go paddling, making 202 million outings on lakes, rivers, bays and other water bodies. Each year 3.3 million people surf in coastal waters, which are impacted by the health of upstream waterways.

An important aspect of the Clean Water Rule is the increased clarity and certainty it brings to the process of making jurisdictional determinations under the Clean Water Act. Since 2008, approximately 100,000 case-specific jurisdictional determinations have been made – a time- and resource-intensive process. The final rule is designed to reduce the need for case-specific determinations, both by clarifying categories of waters that are jurisdictional or not jurisdictional by rule and by simplifying the process for the remaining determinations. This aspect of the final rule reduces burden and brings additional certainty to the process, but the associated benefits could not be quantified in this analysis.

The goal of the Clean Water Act is to restore and maintain the chemical, physical, and biological integrity of the nation’s waters. To achieve that goal, the CWA establishes a number of regulatory and non-regulatory programs that are designed to control pollution at its source and improve water quality. As a pollution prevention statute, the CWA extends beyond waters that are navigable in fact to include the headwater streams, lakes, and wetlands and other waters that contribute significantly to protect the integrity of navigable waters. The scope of waters that are specifically covered by CWA programs is all waters meeting the definition of “waters of the United States.” Any water that does not meet the definition of “waters of the US” is not subject to the CWA. This rule does not change the agencies’ longstanding practices or regulations governing the implementation of this rule.

Because wetlands support a number of migratory birds, threatened species, endangered species, inter-jurisdictional fish, marine mammals, and other species of concern and have been linked to water quality and other environmental values, their susceptibility to climatic variations is an important consideration. Due in part to their limited capacity for adaptation, wetlands have been considered among the ecosystems most vulnerable to climate change.

Global climate change is recognized as a threat to species survival and the health of natural systems. Scientists worldwide are looking at the ecological and hydrological impacts resulting from climate change. Climate change is projected to make future efforts to protect, restore, and manage wetlands more complex. Wetland systems are vulnerable to changes in quantity and quality of their water supply, and it is expected that climate change would have a pronounced effect on wetlands through alterations in hydrological regimes with great global variability. Wetland habitat responses to climate change and the implications for restoration would be realized differently on a regional and mega-watershed level, making it important to recognize that specific restoration and management plans would require examination by habitat. Floodplains, mangroves, seagrasses, saltmarshes, arctic wetlands, peatlands, freshwater marshes and forests are very diverse habitats, with different stressors.

It is indeed a well-accepted fact that sea level rose during the 20th century, and observations and projections suggest that it would rise at a higher rate during the 21st century. Rising seas increase the risk of coastal flooding, storm surge inundation, coastal erosion and shoreline retreat, and wetland loss (The National Research Council, 2012). Sea level rise is a major factor in sustainability of wetlands and their function. As sea level rises some wetlands would be inundated and become open water and some non-jurisdictional areas would experience hydrologic changes such that they would transition to wetlands. This would result in changes in the biota of the United States (wetlands, fish, wildlife, plants) over time.

Additionally, there would be changes in the Ordinary High Water Mark for some waters of the United States as sea level rises.

Here is a view that is presented in a report which was Hpublished on 26 May 2015 by US Army, Office of the Assistant Secretary of the Army for Civil Works on the subject of “Finding of No Significant Impact”:

Based upon an analysis performed as a part of the economic analysis, a random selection of 188 negative jurisdictional determinations made in Fiscal Years 2013 and 2014 covering 32 states, in which waters were found to not be subject to jurisdiction under the Clean Water Act, were reviewed and a determination was made if the waters in those jurisdictional determinations would be determined to be positive with adoption of the final proposed rule. The analysis used negative jurisdiction determinations from the three categories of waters of the United States: streams, wetlands, and other waters. Of the 188 jurisdictional determinations 65 percent were streams, 29 percent were wetlands, and 6 percent were other waters. Based upon that analysis it was determined that there would be an increase of between 2.8 and 4.6 percent in the waters found to be jurisdictional with adoption of the rule. The majority of the change occurring in the determinations would be in the category for waters that fit the “Other Waters” category.

With adoption of the proposed action, there would be an incremental increase in the amount of waters of the United States subject to jurisdiction and therefore protected under the Clean Water Act. Thus, any proposed projects that would impact the areas subject to jurisdiction would be subject to review under the USACE public interest analysis, the Section 404(b)(1) Guidelines and any other applicable federal requirements (e.g., NEPA, Section 7 of the ESA) that would not occur if the areas were not subject to jurisdiction (No Action). Some adverse impacts to the aquatic environment would be avoided or minimized as a result of the adoption of the proposed action. For areas that are impacted due to unavoidable actions, the assumption is that the functional losses would be addressed through compensatory mitigation.

In respect to the Socio-Economic analysis of the costs and benefits conducted by the EPA, indications are that indirect incremental benefits exceed indirect incremental costs. The analysis acknowledges that there is a possibility that costs (and benefits) may be overstated because each new jurisdictional water may not be affected by all Clean Water Act programs simultaneously, and in some cases a particular activity affecting a waters of the United States may be exempt from permitting under the Clean Water Act.

The water in the “other waters” category represents the greatest potential for changes in jurisdictional determinations as a result of adoption of the rule. However, it is likely that the benefits may be understated because the benefits are based primarily on compensatory mitigation acres (from the Section 404 program) and that the willingness to pay analysis used to value these acres are from existing studies conducted between 1986 and 2000. In recent years the public has become more aware of the value of wetlands and updated studies might show a significant increase in willingness to pay associated with preserving wetlands, particularly when wetlands are tied to a concrete utility, such as improved water quality, hunting and fishing habitat, general recreation, or flood control.

An economic assessment report published in May 2015 by EPA and US Department of Army concluded that:

  • Compared to the current regulations and historic practice of making jurisdictional determinations, the scope of jurisdictional waters will decrease, as would the costs and benefits of Clean Water Act programs;
  • Compared to a baseline of recent practice, the agencies assessed two scenarios. Those scenarios result in an estimated annual increase of between 2.84 and 4.65 percent in positive jurisdictional determinations;
  • The agencies’ analysis indicates that for both scenarios, the change in benefits of Clean Water Act programs exceed the costs by a ratio of greater than 1:1;
  • The “other waters” category represents the greatest potential for changes in jurisdictional determinations; and
  • Estimated impacts on Clean Water Act programs may be over-estimated because each newly jurisdictional water will not be affected by all Clean Water Act programs simultaneously, and a particular activity affecting a water may be exempt from permitting under the Clean Water Act. It is also unlikely that new CAFOs and stormwater-relevant construction would be built on new jurisdictional waters without decreases in construction or CAFO activities elsewhere.

The bottomline is that the public was provided with significant environmental information about the proposed rule in order to allow members of the public to provide their views and inform agency decision-making. The draft rule was published in the Federal Register (Vol. 79, No. 76) on April 21, 2014 for public comment through July 21, 2014 and extended at the request of stakeholders until November 14, 2014. After publication of the draft rule approximately 400 stakeholder engagements in the form of meetings, webinars, and phone calls were conducted. 

Of the approximately 1.2 million comments received, the vast majority of the comments were form letters from mass letter writing campaigns. A subset of the 1.2 million comments, 20,567 were identified as unique and evaluated further to determine if the comments were substantive. Responses to the substantive comments have been developed by the EPA and the U.S Army Corps of Engineers and are contained in the rulemaking.

 

 

Resources:

  1. RT Question More – EPA Unveil New Regulations to Protect US Waters from Pollution;
  2. The New York Times: Obama Announces New Rule Limiting Water Pollution;
  3. Los Angeles Times: Under New EPA Rule, Clean Water Act Protections will Cover all Active Tributaries;
  4. EPA: clean Water Rule – Factsheet;
  5. EPA: the Clean Water Rule for Business;
  6. EPA: The Clean Water Rule for Recreation;
  7. Economic Analysis of the EPA – Army Clean Water Rule; and
  8. Finding of No significant Impact.

 

 

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