The Clean Water Rule: A Q&A with the EPA

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On May 27, the U.S. Environmental Protection Agency and the U.S. Army Corp of Engineers issued the Clean Water Rule, which is meant to clearly define the waters that are and that are not protected by 1972's Clean Water Act.

The intent of the CWA has been hotly debated over the years. Some felt that all flowages needed federal protection from pollution and degradation, while others insisted that the federal government had no right to regulate waters on private land. In 2001, the U.S. Supreme Court ruled that the CWA doesn't protect isolated waters and, in 2006, issued a split ruling that the CWA doesn't cover non-navigable waters, either.

The Clean Water Restoration Act of 2009 was designed to provide guidance for the CWA, but the bill never made it out of congressional committee.

This year’s Clean Water Rule is meant to put an end to the uncertainty about the landmark 1972 law.

Field & Stream asked Gina McCarthy, administrator of the EPA, to address questions about the Clean Water Rule. Her answers follow.—Mike Toth

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Field & Stream: Can you tell our readers what, in a nutshell, the Clean Water Rule does?

Gina McCarthy: It's simple: We need clean water upstream to have healthy communities downstream—and the health of rivers, lakes, bays, and coastal waters depend on the streams and wetlands where they begin. Supreme Court decisions in 2001 and 2006 threw protection for about 60 percent of our nation's streams and millions of acres of wetlands into question.

The Clean Water Rule protects the streams and wetlands scientifically shown to have the greatest impact on downstream water quality and that form the foundation of our nation’s water resources. EPA and the U.S. Army are making sure that the waters protected under the Clean Water Act are more precisely defined, easier for businesses and industry to understand, and consistent with the law. EPA and the Army used the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies, which show that small streams and wetlands play an integral role in the health of larger downstream water bodies.

Don't state and local laws protect those waters that are not protected by the Clean Water Act? Can't states just make their own rules and protect water resources that way?

It’s important to remember that water isn’t bound by state lines. Downstream states need to know their water is protected from upstream pollution. So, states asked us for clarity and guidance on the Clean Water Act. We’ve worked closely with states and local governments throughout the process of creating the Clean Water Rule, giving tremendous weight to their input.

States, local governments, and tribes have frontline responsibility for protecting our nation’s waters. Sometimes state and local laws protect streams and wetlands, but sometimes they do not. Also, state water-quality protections are often based on federal protections—a report by the independent Environmental Law Institute noted that 36 states have restrictions on their ability to protect waters beyond those covered under the Clean Water Act. So, clear Clean Water Act protection for streams and wetlands is vital for helping states protect their waters.

What are a tributary and an “associated wetland?” What waters do the rule actually cover and how are those waters going to be defined?

A hallmark of the Clean Water Rule is that it sets clear definitions for protected waters; the Clean Water Act protects navigable waterways and their tributaries. For example, think of a river as the navigable waterway and the many streams that flow into it as the tributaries. The rule says that for a tributary to be protected by the Clean Water Act, it has to show physical features of flowing water—a bed, a bank, and an ordinary high-water mark.

The rule provides protection for headwaters that have these features, and that science shows can have a significant effect on downstream waters. The Clean Water Rule also provides certainty in how far safeguards extend to nearby waters. The rule protects waters like wetlands next to rivers and lakes and their tributaries, because science shows that they impact downstream waters. And the rule also sets physical, measurable boundaries on covering nearby waters for the first time. For example, adjacent waters are covered if they’re in the 100-year floodplain, but less than 1,500 feet from a covered waterway. We’ve never had that kind of clarity before.

Which waters are definitely NOT covered by the new rule?

It’s important for people to know what the Clean Water Rule does not cover, especially because there is some misunderstanding.

The rule protects only waters historically covered by the Clean Water Act. It does not interfere with or change private property rights, or address land use. It does not regulate most ditches or regulate groundwater, shallow subsurface flows, or tile drains. It does not change policy on irrigation or water transfers. It does not apply to rills, gullies, or erosional features. And it definitely does not regulate puddles.

Americans tend to have an “if it ain’t broke, don’t fix it” approach to things these days. Is water quality in the U.S. actually getting worse without this new rule?

We’ve made great progress in improving water quality in the U.S. since the Clean Water Act was passed in 1972. We’ve roughly doubled the number of waters that are swimmable and fishable, from one-third to two-thirds—but that’s only halfway to meeting the Clean Water Act’s goals. We still have many polluted waterways to clear up. And there are other challenges that threaten our water resources, like the impacts of climate change. In the last year, we’ve seen real-life examples of these impacts through intense droughts and storms, warmer water temperatures, and sea-level rise. Last summer, nearly a half a million residents of Toledo, Ohio, went without water for several days because of a harmful algal bloom that was fueled by warm weather and water. California is in the midst of a historic drought and is cutting water usage by 25 percent.

In short, protection for streams and wetlands was broken. And we needed to fix it because streams and wetlands protect communities by trapping floodwaters, recharging groundwater supplies, filtering pollution, and providing habitat for fish and wildlife. People depend on clean water for their health: About 117 million Americans—one in three of us—get drinking water from streams that were vulnerable to pollution before the Clean Water Rule. Our cherished way of life depends on clean water: healthy ecosystems provide wildlife habitat and places to fish, paddle, surf, and swim. And our economy depends on clean water: manufacturing, farming, tourism, recreation, energy production, and other economic sectors need clean water to function and flourish.

Obviously, fishing and the commerce it creates are hugely important to Field & Stream readers. Can you tell us how the new rule could affect our fishing opportunities and the places we fish?

As your readers know better than anyone, you can't have healthy fish without clean water. Headwater streams and wetlands protected by the Clean Water Rule are vital to downstream habitat of fish. According to the fishing community, the list of rivers that have benefited from protection under the Clean Water Act for the past 40 years reads like a copy of America's 100 Best Trout Streams. The Clean Water Rule will build on that legacy of protecting waters that are important to fishing. For example, in Montana, about half of the stream miles within native-trout range are seasonal or rain-dependent—and are now clearly protected by the rule. When we protect clean water, we're also protecting our way of life in America—about 33 million Americans go fishing each year, spending 554 million days by streams, lakes, and rivers. And by protecting clean water, we are supporting our economy—fishing itself is a $48 billion-per-year industry that supports nearly a million family-wage jobs.

A lot of our readers live to hunt waterfowl, and the numbers of ducks and geese are directly related to the extent and the health of America’s wetlands. Can you tell us how the new rule will affect wetlands and about the seasonal wetlands that are crucial for waterfowl breeding?

Hunters know streams and wetlands are critical habitats for waterfowl, birds, and other wildlife. Before the Clean Water Rule, millions of acres of wetlands across the country were not clearly protected. Now that has changed. The Clean Water Rule also protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands that impact downstream waters. In particular, the prairie potholes of the Midwest are vital to hunting in America, as they play host to 18 species of waterfowl. The rule also ensures that fields flooded for rice are excluded and can be used for water storage and bird habitat. Here we again see how clean water is an economic driver—fishermen, hunters, and wildlife watchers spent $144.7 billion in 2011 alone on activities, equal to 1 percent of U.S. Gross Domestic Product.

Some feel the new rule will give the federal government control over everything from the potholes in a driveway to a birdbath in the yard next door. How do you answer those who say that this new rule is a prime example of federal overreach? How do we justify giving the EPA the power to enforce these new rules on private property?

We hope people take the time to look at the rule. They will see that this rule does not give the federal government control over puddles or farm ponds or water on their lawn. In fact, the Clean Water Act now protects fewer waters than it did during the 70’s, 80’s and 90’s before the Supreme Court narrowed its coverage.

For more than a decade, EPA and the Army have received requests for a rulemaking to provide clarity on protections under the Clean Water Act from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists, and the public. In developing the rule, the agencies held more than 400 meetings with stakeholders across the country, reviewed over one million public comments, and listened carefully to perspectives from all sides.

How do you answer landowners who are concerned that protection of waters on their property may restrict their ability to protect their land and buildings from floods and to make improvements on the land, ultimately decreasing their property's value?

The Clean Water Rule does not interfere with or change private-property rights or address land use. Remember, a Clean Water Act permit is only needed if protected waters are going to be polluted, degraded, or destroyed.

If people aren’t actually polluting or damaging protected water, then the Clean Water Act—and this rule—don’t impact them.

It’s worth noting that residential housing construction boomed in the 1990s, a period when the Clean Water Act was applied more broadly than today. For landowners and developers, the rule will reduce regulatory uncertainty and delays in permitting by clearly defining the waters covered. There are simplified procedures for those seeking to protect their property from flooding, but the Clean Water Act ensures those protections don’t harm the environment or downstream property owners. We are making it easier and quicker for landowners, businesses, and industry to operate.

Why are groups like the American Farm Bureau Federation so opposed to this rule? How will those concerns be addressed? Are there exemptions for agriculture, silviculture, and other practices?

In developing the rule, EPA and the Army listened carefully to input from the agriculture community, the U.S. Department of Agriculture, and state Departments of Agriculture. We held hundreds of meetings across the country with farmers, ranchers and other agricultural stakeholders—including the Farm Bureau—to provide information, hear concerns, and answer questions. EPA officials visited farms in Arizona, Colorado, Maryland, Mississippi, Missouri, New York, Pennsylvania, Texas, and Vermont. All this input helped to shape the final Clean Water Rule.

Farms across America depend on clean, reliable water for livestock, crops, and irrigation. This rule protects water sources without getting in the way of farming, ranching, and forestry. The Clean Water Rule provides greater clarity and certainty for farmers, and does not create any new permitting requirements, and does not add economic burden on agriculture.

Normal farming and ranching—including planting, harvesting, and moving livestock—have long been exempt from Clean Water Act regulation, and the Clean Water Rule doesn’t change that. The final rule specifically recognizes the vital role that agriculture serves in providing food, fuel, and fiber for the United States and the world.

Some readers will ask why the new rule has so many exemptions for farmers if we know that so much of the water pollution in places like Iowa and Lake Erie is directly related to agricultural practices.

To clarify, the Clean Water Rule did not create a host of new exemptions for farmers. Congress provided most of the exemptions and exclusions to the Clean Water Act for agriculture several decades ago. The pollution in America’s waterways comes from a variety of sources that, in addition to agriculture, include runoff from our cities and towns and discharges from water-treatment facilities.

Congress did not give EPA the same regulatory authority over pollution from agriculture as EPA has over industrial and municipal sources. EPA and its federal partners, like USDA, continue to work with the agricultural community to encourage the use of conservation practices that reduce pollutants entering waterways. EPA also works with the states to encourage the use of state authorities and programs to address pollution from agriculture.