On December 11, the U.S. Environmental Protection Agency and the U.S. Army Corps Of Engineers proposed to change the definition of “waters of the United States” to clarify federal authority under the federal Clean Water Act.

Jan Goldman-Carter, Senior Director Of Wetlands and Water Resources at the National Wildlife Federation, told the Associated Press Sunday the proposed rule would eliminate protection for about 60 percent of the stream miles in the continental U.S. and 50 percent of wetlands.

“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” said EPA Acting Administrator Andrew Wheeler. “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”

The agencies’ proposal is the second step in a two-step process to review and revise the definition of “waters of the United States” consistent with President Trump's February 2017 Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.”

The Executive Order states that it is in the national interest to ensure that the nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution.

“EPA and the Army together propose this new definition that provides a clear and predictable approach to regulating ‘waters of the United States.’ We focused on developing an implementable definition that balances local and national interests under the Clean Water Act,” said R.D. James, Assistant Secretary of the Army for Civil Works. “I have heard from a wide range of stakeholders on Clean Water Act implementation challenges. This proposed definition provides a common-sense approach to managing our nation's waters.”

The agencies’ proposed rule would provide clarity, predictability and consistency so that the regulated community can easily understand where the Clean Water Act applies—and where it does not.

Under the agencies’ proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated.

It also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and waste treatment systems.

The agencies believe this proposed definition appropriately identifies waters that should be subject to regulation under the Clean Water Act while respecting the role of states and tribes in managing their own land and water resources.

States and many tribes have existing regulations that apply to waters within their borders, whether or not they are considered “waters of the United States.”

The agencies’ proposal gives states and tribes more flexibility in determining how best to manage their land and water resources while protecting the nation’s navigable waters as intended by Congress when it enacted the Clean Water Act. 

In response to requests from some states, EPA and the Army are exploring ways the agencies can work with our federal, state, and tribal partners to develop a data or mapping system that could provide a clearer understanding of the presence or absence of jurisdictional waters.

The agencies invited written pre-proposal recommendations and received more than 6,000 recommendations that the agencies have considered in developing this proposal. The agencies listened to those directly affected by the regulations, and this proposal balances the input the agencies received from a wide range of stakeholders.

The agencies will take comment on the proposal for 60 days after publication in the Federal Register. EPA and the Army will also hold an informational webcast on January 10, 2019, and will host a listening session on the proposed rule in Kansas City, KS, on January 23, 2019.

The rule, if it becomes final, will not have an impact in Pennsylvania because the state has had a stricter definition of waterways and wetlands to be protected for decades under state law.  A different federal definition, however, may cause confusion in the regulated community.

More information including a pre-publication version of the Federal Register notice, visit EPA’s Waters Of The U.S. Rule webpage.

Reaction

Chesapeake Bay Foundation Vice President Lisa Feldt issued this statement on the proposed change--

"This proposed revision undermines this nation’s fundamental clean water protections.

“The new definition would remove federal protections from certain waters and wetlands that aren’t otherwise protected by state law. In the Chesapeake Bay watershed, this includes waters in Delaware and West Virginia, as well as the District of Columbia, which are governed by federal law. Additionally, the revised definition could prevent states with more strict protections, such as Maryland, from holding upstream states accountable for water pollution they allow to cross state lines.

"Clean water is a right, not a luxury. The Chesapeake Clean Water Blueprint is working. Now is not the time for the federal government to weaken efforts to reduce pollution."

NewsClips:

Bay Journal: Feds Announced Proposed Rollback Of Some Waterway, Wetlands Protections

Chesapeake Bay Advocates Raise Concerns About Changes To Waters Of U.S. Rule

Trout Unlimited: Standing Tall For Small Waterways, Proposed EPA Stream Definition Changes

Kummer: Environmentalists Call Trump Proposed Water Rule Changes Big Gift To Business

Trump Administration Proposes Roll Back Of Obama-Era Water Protections

Trump Administration Moves To Slash Federal Protection For Waterways

AP: EPA To Eliminate Protection For 60% Of Waterways, 50% Of Wetlands

[Posted: Dec. 11, 2018]

12/17/2018