Feds redefine what’s covered under Clean Water Act
The Environmental Protection Agency and the Army Corps of Engineers’ long-anticipated new rule redefining what’s covered under the Clean Water Act was announced Thursday. The EPA says the rule clarifies the federal regulations and gives states greater authority over their waterways and landowners more control in managing water on their properties.
In trying to strike a balance between protecting waterways while not handicapping economic development, the revised definition “protects the nation’s navigable waters from pollution and will result in economic growth across the country,” the EPA said in a release.
Environmental groups, however, immediately slammed the change, saying it will lead to waters polluted with pesticides and more flooding.
“Science and economics have been cast aside in the design of this rule,” said Bethany Davis Noll, with the Institute for Policy Integrity at the New York University School of Law.
“The agencies have conducted a hopelessly flawed economic analysis that rests on fundamentally incorrect assumptions and is sure to face a vigorous legal challenge. This rule leaves numerous waters without federal protections, and, despite the Trump
administration’s assertions, most states are unlikely to fill the void with their own safeguards.”
“So much for the ‘crystal clear’ water President Trump promised,” agreed Gina McCarthy, president and CEO of the Washington, D.C.-based Natural Resources Defense Council.
In an era of divisive politics, the fight over five words in the 234-page act — “waters of the United States” — somehow fits right in. The Federal Water Pollution Control Act of 1948, later amended and renamed the Clean Water Act in 1972, has become a flashpoint between those who want a check on government regulation of waterways and those who believe every possible safeguard to protect our water should be taken. It seems unlikely that Thursday’s announcement of the new rule by EPA Administrator Andrew Wheeler will end the debate.
The administration says the changes would allow farmers to plow their fields without fear of unintentionally straying over the banks of a federally protected dry creek, bog or ditch. But the government’s own figures show it is real estate developers and those in other nonfarm business sectors that take out the most permits for impinging on wetlands and waterways, and stand to reap the biggest regulatory and financial relief.
Mr. Wheeler specified the changes lift federal protections for so-called ephemeral waters — creeks and rivers that run only after rainfalls or snowmelt. Such streams provide a majority of the water for some dry Western states, including New Mexico.
Also on Thursday, regional EPA and Army Corps officials and U.S. Rep. Glenn Thompson, R-Centre County, in a media briefing at the William S. Moorhead Federal Building, Downtown, described the previous rule as regulatory overreach that would put “99%” of Pennsylvania’s water under the 1972 Clean Water Act, forcing farmers and landowners to seek legal counsel to make sure they complied as they managed water on their properties.
It also hampered economic development, they said, and a 2015 attempt to clarify the rule “has only made things more difficult,” said Mr. Thompson, who serves on the House Agriculture Committee.
Under the new Navigable Waters Protections Rule, four categories of water remain regulated under the Clean Water Act: territorial seas and traditional navigable waters such as Pittsburgh’s three rivers; tributaries to those waters; certain lakes, ponds and water supply impoundments; and wetlands adjacent to waters under the act’s jurisdiction.
Water from rainfall and groundwater, among other water areas, will not be covered.
The new rule replaces the previous definition, repealed in September, regarding what is considered “waters of the United States” under Section 404 of the Clean Water Act, which regulates the discharge of dredge or fill material.
It is expected to take effect this spring.
Those praising the new rule include the Associated General Contractors of America whose CEO Stephen Sandherr said it “employs sound administrative policy to protect our vital waterways while providing permitting clarity for infrastructure and development projects to proceed in a timely manner.
“One reason our association has invested so much time and resources into advocating for a measure like this is we expect it will reduce regulatory uncertainty and bureaucratic confusion that threatened to stifle countless essential projects to improve our infrastructure and the environment across the country.”
But environmental groups fear a cost that won’t be measured in dollars.
“Clean water is a basic need. And with many of our towns and cities still living with unsafe drinking water, now is not the time to cut back on clean water enforcement,” said Laura Rubin, director of the Healing Our Waters — Great Lakes Coalition in Ann Arbor, Mich.
“We need more — not less — protection for clean water.”