EPA and Army Corps of Engineers Release New Rule To Protect Waterways

The Environmental Protection Agency and U.S. Army Corps of Engineers released a proposed rule this week to clarify which waterways are protected under the Clean Water Act.

Two Supreme Court decisions, one in 2001 and the other in 2006, made determining which waterways are protected under the CWA confusing and complex. The proposed rule doesn’t expand waterways protected under the CWA, but only clarifies which ones are protected. Or as EPA head Gina McCarthy stated in an op-ed piece for the Huffington Post, “Our proposed rule will not add to or expand the scope of waters historically protected under the Clean Water Act.”

About 60 percent of the stream miles in the U.S. only flow seasonally or after rain, and about 117 million people, one in three Americans, get drinking water from public systems that rely in part on those streams. The proposed rule would clarify that under the CWA most seasonal and rain-dependent streams are protected. It would also clarify that wetlands near rivers and streams are protected. Other waterways whose connections with downstream water are uncertain will be evaluated to determine whether the connection is significant. In addition, the proposed rule preserves the CWA exemptions and exclusions for agriculture.

To explain the proposed rule to the American people, the EPA released several videos. One of them is by McCarthy, who gave an overview on the rule. “The EPA is taking action to keep America’s waterways clean and healthy,” she said. The rule is “about protecting our natural resources” because “every sector of our economy depends on water.” The other video is by EPA’s Deputy Chief of Staff Arvin Ganesan who included an overview of the CWA. “The Clean Water Act worked. Our waterways were getting cleaner, but over the last 15 years a few complex court cases have tangled up these essential protections, making it unclear what waters are covered by the Clean Water Act,” Ganesan said.

Supporters praise the proposed rule

The American Sustainable Business Council (ASBC) has already come out in support of the proposed rule. “Today, we applaud the Agency for taking steps to clarify that small streams, wetlands and other tributaries are protected by the Act,” the group said in a statement. “Today's action by the EPA is good for the environment and good for business."

Environmental groups also support the proposed rule. “We applaud the EPA for proposing a rule that would reinstate clean water protections for streams and wetlands that supply the drinking water of 117 million Americans,” said Earthjustice President Trip Van Noppen. He added that “ polluters will rail and lobby against this rule and any other clean water safeguards that keep them from dumping their toxic waste in our communities and waters, or that hold them accountable for their pollution.”

Healing Our Waters-Great Lakes Coalition and the Sierra Club also support the proposed rule. The Healing Our Waters-Great Lakes Coalition’s campaign director, Todd Ambs said, “This rule can help ensure that as we take one step forward we aren’t also taking two steps back.” Sierra Club Executive Director Michael Brune said that the group “applauds the Obama administration for this effort to restore a common-sense approach to protecting our nation's lakes, rivers and streams."

Image credit: amy halverson