Swamp Stomp

Volume 15, Issue 16

On April 6, 2015, Gina McCarthy and Jo-Ellen Darcy of the Environmental Protection Agency (EPA) published a blog post claiming that public concern over the Clean Water proposal is helping to shape the final rule.

A draft of the rule was sent to the Office of Management and Budget on April 3, 2015 for interagency review. McCarthy refused to divulge what changes were made to the rule. She said, “Since it’s not final yet, we can’t speak to every detail.”

However, McCarthy did claim that the “spirit of the rule” can be reduced to three simple facts. “First,” she said, “people depend on clean water: one in three Americans get their drinking water from streams currently lacking clear protection.”

“Second, our economy depends on clean water: manufacturing, farming, ranching, tourism, recreation, and other major economic sectors need clean water to function and flourish,” she continued.

“Third, our cherished way of life depends on clean water: healthy ecosystems support precious wildlife habitat and pristine places to hunt, fish, boat, and swim.”

The draft of the Clean Water Rule was first released a year ago. Over one million public comments from farmers, ranchers, manufactures, business owners, hunters and anglers, and many others have since made their way to the EPA. McCarthy assured the public that “in the final rule, people we see that we (the EPA) made changes based on those comments, consistent with the law and science.”

Then, without disclosing any specific aspects of the newly drafted rule, McCarthy did share in the blog post the following points that the EPA were considering when writing rule:

• Better defining how protected waters are significant. A key part of the Clean Water Rule is protecting water bodies, like streams and wetlands, which have strong impacts downstream – the technical term is “significant nexus.” We will respond to requests for a better description of what connections are important under the Clean Water Act and how agencies make that determination.
• Defining tributaries more clearly. We’ve heard feedback that our proposed definition of tributaries was confusing and ambiguous, and could be interpreted to pick up erosion in a farmer’s field, when that’s not our aim. So we looked at ways to refine that definition, be precise about the streams we’re talking about, and make sure there are bright lines around exactly what we mean.
• Providing certainty in how far safeguards extend to nearby waters. The rule will protect wetlands that are situated next to protected waterways like rivers and lakes, because science shows us they impact downstream waters. We will provide a clear definition about what waters are considered adjacent waters.
• Being specific in the protection of the nation’s regional water treasures. We heard concerns that the category we called “other waters” in the rule was too broad and undefined. We’ve thought through ways to be more specific about the waters that are important to protect, instead of what we do now, which too often is for the Army Corps to go through a long, complicated, case by case process to decide whether waters are protected.
• Focusing on tributaries, not ditches. We’re limiting protection to ditches that function like tributaries and can carry pollution downstream—like those constructed out of streams. Our proposal talked about upland ditches, and we got feedback that the word “upland” was confusing, so we’ll approach ditches from another angle.
• Preserving Clean Water Act exclusions and exemptions for agriculture. We will protect clean water without getting in the way of farming and ranching. Normal agriculture practices like plowing, planting, and harvesting a field have always been exempt from Clean Water Act regulation; this rule won’t change that at all.
• Maintaining the status of waters within Municipal Separate Storm Sewer Systems. Some state and local governments raised questions about waters within these permitted systems. We listened carefully as we did not intend to change how those waters are treated and have considered ways to address this concern. We will also continue to encourage the use of creative solutions like green infrastructure and low-impact development, as many of these communities have advocated.

It is surprising that while many of these considerations deal with clarifying issues, none of the changes made to the rule were publicly released. Instead, the EPA sent the rule to the White House for review. It is expected that this final rule will be passed in a matter of weeks, allowing no time for public comment. Considerations and intent are valuable, but not as valuable as the specific words written in the rule. By sending the rule for official review without releasing any specifics, and not opening the rule up for any public comment, the EPA has simply worked around public opinion and will have a rule passed that may or may not be similar to the one previously proposed.