Clarifying the Clean Water Act

The Clean Water Act (CWA), passed in 1972, has made a significant difference in protecting our rivers, lakes and coastal areas, and has stopped billions of pounds of pollution from entering our nation’s waters. The act explicitly protects the “waters of the United States,” which are defined under existing regulations as “traditional navigable waters, interstate waters, all other waters that could affect interstate or foreign commerce, impoundments of waters of the United States, tributaries, the territorial seas, and adjacent wetlands.”

Certain bodies of water, however, are difficult to definitively determine whether or not they are protected under the CWA. This can lead to frustration from both environmental protection groups and developers. This issue has actually been addressed by the U.S. Supreme Court several times, questioning, for example, whether wetlands adjacent to non-navigable tributaries of navigable waters are subject to protection under the CWA. Unfortunately, there is still much uncertainty about whether some specific bodies of water are subject to federal protection.

In light of this confusion, last month the EPA and Army Corps of Engineers released a proposed a rule that is set to clarify which waters are subject to the protection of the Clean Water Act. The waterways that this rule proposes to clarify are intermittent streams, rain-dependent streams, and riparian wetlands.

The proposed rule retains much of the old definition of “waters of the United States,” but also looks to the aforementioned past Supreme Court rulings as well as to a major scientific assessment completed this fall for its new definition. A draft of the assessment, called the Connectivity of Streams and Wetlands to Downstream Waters Assessment, concluded that “streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters.”

The EPA says the proposed rule would “enhance protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of the ‘waters of the United States’ protected under the Act.” Increasing clarity of the scope of the CWA will streamline the process for both projects that do and do not need permits, and lower the amount of waters that will need to be determined on a case by case basis.

The clarification of a definition of something like “waters of the United States,” seems like a small task, however clarifying the scope of protection of the CWA may have large impacts. The water sources in question often feed into drinking-water sources. According to the EPA, nearly 60% of the country’s thousands of miles of streams are either seasonal or rain dependent. The proportion is even higher than this in the West, where a significant portion of water sources are intermittent. The EPA said that one in three Americans, or 117 million people, gets their drinking water from systems fed by these intermittent and rain dependent streams.

There is significant opposition to this proposed rule. Opposition to this rule is mostly from agriculturalists, those in construction and development, as well as those in the energy industry. They are worried that the EPA is overstepping its boundaries, and that expansion of bodies of water protected by the Clean Water Act will lead to an extensive and onerous permitting process, as well as raise the prices of construction, development and land use.

The final proposed rule will be published in the Federal Register in the next few weeks. After this, there will be a 90 day public comment period for both proponents and opponents to state their views and questions surrounding the new definition. Until the rule is published on the Federal Register, you can see a prepublication at: http://www2.epa.gov/uswaters/definition-waters-united-states-under-clean-water-act.