EPA and Army Corps Clarify Protection for Nation’s Streams and Wetlands

Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded by Proposal.

By Mark S. Kuhar

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) jointly released a proposed rule to clarify protection under the Clean Water Act for streams and wetlands.

The proposed rule will “benefit businesses by increasing efficiency in determining coverage of the Clean Water Act,” the agencies said. The agencies said they are launching a robust outreach effort over the next 90 days, holding discussions around the country and gathering input needed to shape a final rule.

The National Stone, Sand and Gravel Association (NSSGA) said it’s very concerned by the proposed rule, which it claimed “would overstep Congress and the U.S. Supreme Court by effectively removing the significance of ‘navigable’ from the Clean Water Act, imposing immense costs on the 10,000 aggregates operations across the United States.”

Expanding the definition of a “navigable” waterway to include dry stream beds and floodplains will further complicate an already cumbersome permitting process, adding more roadblocks to an industry that literally provides the foundation of the U.S. economy.

“At a time when the president, Congress and Americans everywhere are rightly concerned about the state of our transportation infrastructure, it is frustrating that the EPA decides to prioritize a dramatic, unwarranted and unwise change that would so negatively impact the ability to build the roads and bridges America desperately needs,” said NSSGA President and CEO Michael Johnson. “The economic analysis that EPA used is deeply flawed. Under the proposed rule, increased mitigation costs at just one site could be more than EPA says mitigation costs will increase in entire states! Furthermore, violations of this proposed rule would expose businesses to fines of up to $37,500 per day. This rule, if implemented as proposed, can and will drive small companies out of business.”

EPA and the Army Corps said the proposed rule “clarifies protection for streams and wetlands. The proposed definitions of waters will apply to all Clean Water Act programs.” It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.

“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” said EPA Administrator Gina McCarthy. “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 fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.”

“America’s waters and wetlands are valuable resources that must be protected today and for future generations,” said Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy. “Today’s rulemaking will better protect our aquatic resources, by strengthening the consistency, predictability, and transparency of our jurisdictional determinations. The rule’s clarifications will result in a better public service nationwide.”
Specifically, the proposed rule clarifies that under the Clean Water Act and based on the science:

  • Most seasonal and rain dependent streams are protected.
  • Wetlands near rivers and streams are protected.
  • Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.

The proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture. Additionally, EPA and the Army Corps have coordinated with the U.S. Department of Agriculture (USDA) to develop an interpretive rule to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements.

The proposed rule is “supported by the latest peer-reviewed science, including a draft scientific assessment by EPA, which presents a review and synthesis of more than 1,000 pieces of scientific literature,” the agencies said.

“I am concerned over the obvious lack of consideration by the EPA for the input invited during the development of this rule,” Johnson said. “EPA insists this is only a ‘definitional change,’ clearly disregarding the input from NSSGA and dozens of other organizations on the damaging impacts this proposal will actually have. When companies can lose their ability to operate over a dry ditch, that is much more than just a ‘definitional change.’”

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