WaterNew EPA rules extend Clean Water Act protection to more streams, wetlands

Aiming to clarify the ambiguities of the federal Clean Water Act, the Environmental Protection Agency (EPA) last week issued a new ruling which take a tougher approach to the protection of streams and wetlands which support wildlife habitats and filter drinking water supplies.

As the Los Angeles Times reports, President Barack Obama’s administration wants to better to define what falls under the protection guidelines, another piece of evidence that the president is determined to take executive action on environmental issues, regardless of Congressional support.

“There is nothing complicated about the idea that we should protect the tributary system that flows into our nation’s rivers,” said David Uhlmann, a law professor at the University of Michigan who was in charge of environmental crimes prosecution at the Department of Justice (DOJ). “What is more difficult is deciding when to protect wetlands, which perform essential ecological functions but often make it difficult or impossible for landowners to develop their property.”

EPA officials have warned that up to 60 percent of the streams and millions of acres of wetlands in the United States are not protected under current law. The new regulations would bring these streams and wetlands under the protection of the Clean Water Act.

The new rules, drafted by the EPA and the U.S. Army Corps of Engineers, came under attack from the farming and business sectors, and some legislatures, such as Arizona’s two Republican senators, Jeff Flake and John McCain, gave voice to this criticism.

“The proposed rule provides none of the clarity and certainty it promises,” said the American Farm Bureau in a letter to Congress. “Instead, it creates confusion and risk by providing the agencies with almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects. That could include farm ditches, agricultural ponds and isolated wetlands.”

The farm bureau has launched a social media campaign with the Twitter hashtag #Ditchtherule, leading to an EPA counterattack with #Ditchthemyth. Previously, the U.S. Supreme Court had defined Clean Water Act-qualified bodies of water as any with a “significant nexus” to navigable waterways, but the debate continues about what exactly qualifies.

Sanders Moore, the director of Environment New Mexico, said that the currently narrow definition of protected waters has led to more pollution of water which already falls under EPA protection.

“When they run, they pick up all of those pollutants and take them into larger rivers,” she said.

In acknowledgment of the criticism, EPA administrator Gina McCarthy conceded that the agency’s initial definition of tributaries, for example, was “confusing and ambiguous” and could “pick up erosion in a farmer’s field, when that’s not our aim.”

“The agency was also revisiting how it addressed ditches,” she wrote, “limiting protection to ditches that function like tributaries and can carry pollution downstream.” She noted that the agency does not intend to alter “how stormwater systems are treated.”