Clean Water Act rules proposed, continue over

During the last week of March, the Environmental Protection Agency and U.S. Army Corp of Engineers proposed yet another set of rules to expand their jurisdiction over a variety of water sources in the U.S. 

While the rule was proposed, Wyoming Association of Conservation Districts Executive Director Bobbie Frank commented, “The EPA has not published the rule in the Federal Register.”

EPA Administrator Gina McCarthy noted, “We are clarifying protection for the upstream water that are absolutely vital to downstream communities. Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fisherman who depend on healthy waters for recreation and their work and to businesses that need a steady supply of water for operations.”

Rule basis

EPA says the rule is proposed based on a report titled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. 

The document, which is still being peer-reviewed, looks at more than 1,000 pieces of scientific literature and presents a comprehensive review and synthesis of the documents.

EPA notes that while a draft report on the document is available, public meetings on the report will be held between April 28 and May 2.

EPA’s Nancy Stoner noted that Supreme Court decisions in both 2001 and 2006 created complexities and confusion in the Clean Water Act as far as determining when the act is applied in protection of streams and waters, so the proposed rule seeks to clarify that confusion.

Proposed rule 

The proposed rule clarifies that most seasonal and rain-dependent streams are protected, and that wetlands near rivers and streams are protected. 

“All waters have headwaters,” Stoner said. “We can’t protect the downstream water if we don’t protect the headwaters.”

In looking at wetlands, she also commented that the proposed rule does not change the definition of a wetland, so the floodplain is not a water of the U.S. Rather, surface waters within the floodplain area are protected.

Additionally, it states that other types of waters may have more uncertain connections with downstream water, and protection will be evaluated on a case-by-case analysis to determine the significance of the connection. 

“To provide more certainty, the proposal requests comment on options protecting similarly situated waters in certain geographic areas or adding to categories of waters protected without case-specific analysis,” Stoner said.

Cost/benefit analysis

In presenting information about the rule, EPA also presented a cost/benefit analysis of the proposed rule, revealing that their findings show benefits from the changes made.

“The proposed rule will benefit businesses by increasing efficiency in determining coverage of the Clean Water Act,” EPA commented. “The proposed rule would provide an estimated $388 million to $514 million annually of benefits to public, including reducing flooding, filtering pollution, providing wildlife habitat, supporting hunting and fishing and recharging groundwater.”

At the same time, a cost of between $162 million and $279 million per year was figured to mitigate the impacts to streams and wetlands and in taking steps to reduce pollution to waterways.

“Even the lowest estimate of benefits exceeds the highest estimate of costs,” Stoner commented.

“They showed in their cost/benefit analysis how this rule will be much cheaper than not regulating,” Frank added, “but that is based on the assumption that all of the waters will require cleanup.”

State involvement

At the same time, EPA claims that 36 states, including Wyoming, “have limitations on the ability to protect waters that aren’t covered by the Clean Water Act.”
Frank alleged that this statement is untrue for Wyoming, but EPA asserts, “This is particularly critical for states using their water quality certification authority under Section 401 to ensure license and permits protect state water quality.”

Clarifications

EPA also emphasized that the rule does not protect new types of waters, broaden historical coverage of the Clean Water Act or regulate groundwater. Additionally, they say the rule does not expand regulation of ditches or remove any exemption currently in statue or regulation. 

“We worked very hard to not only make sure the proposed rule doesn’t have a negative impact on agriculture, but that it actually benefits those involved in farming, ranching and forestry,” EPA added.

Industry comments

A big player in the debate on the waters of the U.S. discussion, the National Cattlemen’s Beef Association (NCBA), sees that the proposal would encompass far more than EPA says and that the rule is over reaching.

“This proposal by EPA and the Corps would require cattlemen like me to obtain costly and burdensome permits to take care of everyday chores like moving cattle across a wet pasture or cleaning out a dugout,” said NCBA President Bob McCan.

“This proposal flies in the face of the Constitution and the Supreme Court’s interpretation of the EPA and Corps’ jurisdiction under the Clean Water Act. It takes the authority Congress granted EPA beyond the scope of Congressional intent. This is an illegal act by the EPA, and we will defend the rights of our members and producers,” said McCan.

Uncertainty

However, Frank added, “Until they publish the official rule, we don’t know what is going to be in it. We can’t read or highlight or make comments because they may or may not correlate with the final version in the Federal Register.”

Until the rule is officially published, Frank noted that the rule could be changed in any of a number of ways prior to it being published. 

“EPA likely published the proposed rule to address problems and see the reaction of those affected,” said Frank. “We have to wait until the rule comes out in the Federal Register before we actually know, though.”

“Right now, we just don’t know what will be in the final rule,” Frank commented.

Saige Albert is managing editor of the Wyoming Livestock Roundup and can be reached at saige@wylr.net.