Final EPA Waters Of The U.S. Rule Issued, Little Impact In PA Expected
The U.S. Environmental Protection Agency and the U.S. Army finalized the Clean Water Rule Wednesday to clearly protect from pollution and degradation the streams and wetlands that form the foundation of the nation’s water resources.
The rule ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry.
The rule is grounded in law and the latest science, and is shaped by public input. The rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.
“For the water in the rivers and lakes in our communities that flow to our drinking water to be clean, the streams and wetlands that feed them need to be clean too,” said EPA Administrator Gina McCarthy. “Protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms, and warmer temperatures – which is why EPA and the Army have finalized the Clean Water Rule to protect these important waters, so we can strengthen our economy and provide certainty to American businesses.”
“Today's rule marks the beginning of a new era in the history of the Clean Water Act,” said Assistant Secretary for the Army (Civil Works) Jo-Ellen Darcy. “This is a generational rule and completes another chapter in history of the Clean Water Act. This rule responds to the public's demand for greater clarity, consistency, and predictability when making jurisdiction determinations. The result will be better public service nationwide."
Specifically, the Clean Water Rule:
— Clearly defines and protects tributaries that impact the health of downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
— Provides certainty in how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.
— Protects the nation’s regional water treasures. Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
— Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.
— Maintains the status of waters within Municipal Separate Storm Sewer Systems. The rule does not change how those waters are treated and encourages the use of green infrastructure.
— Reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.
Not Much Impact In PA
The Department of Environmental Protection told the Citizens Advisory Council on two occasions (May, June) last year the proposed EPA Waters of the U.S. rule would have little impact in Pennsylvania because state water quality programs already exceeded minimum federal requirements and use a similar regulatory definition.
In October, DEP submitted comments to EPA on the rule which said in part, “The rule as drafted creates more confusion than it clarifies, and is already subject to differing interpretations of EPA and U.S. Army Corps of Engineers staff. This confusion will delay permitting and could undermine strong state programs [like Pennsylvania].”
Chesapeake Bay Foundation President William C. Baker issued this statement on the final Waters of the U.S. rule— “The new rule is backed by the latest science documenting the connection between wetlands and headwater streams, and downstream waters. Now that the rule is in place, it is our hope that all of us working for healthy, safe water everywhere will have a common understanding and can work together to deliver what Congress promised us in 1972 when it passed the Clean Water Act--fishable, swimmable waters.”
For more information, visit EPA’s Clean Water Rule webpage.
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