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What’up WOTUS?

September 25, 2014

The nation’s rivers, lakes and other waters are generally cleaner today than they were forty years ago thanks to the Clean Water Act (1972).  The Clean Water Act (CWA), after all, was designed to fix problems identified in the 1950s and 1960s like sewage treatment, point-source pollution discharges and a legacy of burning rivers.  Because of the CWA, many – but not all – “waters of the United States” (a.k.a. WOTUS) are more swimmable, fishable and drinkable.

Why is everyone talking about WOTUS?  Right now the U.S. Environmental Protection Agency (EPA) is working on a rule making to clarify the definition of “waters of the U.S.”

Under existing regulations, the CWA protects “navigable waters,” which the CWA defines as “the waters of the United States, including the territorial seas.”  However, the CWA does not clearly define “waters of the U.S.”  This means the CWA has given federal agencies latitude to interpret what “waters of the U.S.” means.  As one might imagine, this has led to confusion regarding what water bodies are and are not protected under the CWA.  The level of confusion has also been compounded by two Supreme Court rulings in 2001 and 2006 that questioned the regulatory scope of the CWA.  The Supreme Court created uncertainty about the jurisdiction of “other waters” that do not fall under the category of waters susceptible to interstate commerce, interstate waters, the territorial seas, tributaries or adjacent waters.

Given the uncertainty about the regulatory scope of the CWA, Congress and the Supreme Court urged EPA to clarify regulations on the definition of “waters of the U.S.”  In response, the EPA and the U.S. Army Corps of Engineers (Corps) proposed a two-page rule on March 25, 2014 to clarify protection under the CWA for streams and wetlands across the U.S. The proposed rule will apply to all CWA programs – for example, the National Pollutant Discharge Elimination System (NPDES) and Section 404 discharge of dredge and/or fill permitting –  and reflects the Supreme Court’s more narrow reading of CWA jurisdiction.

What the Proposed Rule Will Do: Primarily, the proposed rule will reduce confusion surrounding protection under the CWA by establishing two simple categories: (1) for waters that are “waters of the United States” and (2) for waters that are not “waters of the U.S.” Waters that are deemed “waters of the U.S.” are subject to multiple regulatory requirements under the CWA, like meeting specific water quality standards, requiring discharge limitations, meeting permit requirements, and are subject to enforcement action. Waters that are not “waters of the U.S.” are not subject to those regulatory requirements under the CWA. By reducing confusion regarding CWA protection, the proposed rule will save time and money that would otherwise be necessary to determine if a water body is protected.

Additionally, the proposed rule clarifies that most seasonal and rain dependent streams are protected as well as wetlands near streams and rivers. Moreover, federal clarification of what is and is not covered under the CWA will help states protect their waters, especially those states that have legal limitations on the ability to protect waters that are not currently covered by the CWA.  Georgia does not have legal limitations on the ability to protect non-CWA waters. When the rule is finalized, it will provide more benefits than costs to the public. According to EPA’s social cost and benefit analysis, the benefits are approximately twice as much as the costs.

No Changes for Agriculture: All existing exemptions and exclusions for agricultural activities will be preserved under the proposed rule.  Moreover, EPA and the Corps coordinated with the U.S. Department of Agriculture to develop an interpretive rule, effective immediately, which ensures that 56 conservation practices that protect or improve water quality are exempt from Section 404 dredge and/or fill permitting requirements under the CWA.  Agricultural practices that qualify for this exemption include habitat restoration and establishment of riparian forest buffers.

What the proposed rule will not do:  Although the proposed rule indicates the specific water bodies that will be protected under the CWA, the proposed rule does not protect any new types of waters that have not been historically covered under the CWA.  Specifically, the proposed rule does not regulate groundwater nor does it expand the regulation of ditches.  Thus, if a water body has not been previously covered under the CWA, that water body will not be covered under the CWA based on this proposed rule.  Moreover, the proposed rule will not remove any exemption currently in the statute or regulations.

Why is the proposed rule beneficial for Georgia?  The lack of clarity under current regulations has made it difficult to provide protection for water bodies throughout the country and in Georgia.  According to EPA (see 15:03 mark), the lack of clarity hindered enforcement efforts in Lake Blackshear’s tributaries to protect water quality standards for recreation. Specifically, unhealthy levels of viruses and bacteria were found in the lake downstream of multiple concentrated animal feeding operations (CAFOs).  In 2008, EPA determined two diary operations were violating the terms of their National Pollutant Discharge Elimination System (NPDES) permits, and issued enforcement orders and levied fines.  Despite putting human health at risk, the CAFOs could not be held fully accountable because it was too complex to prove that the tributaries were protected under the CWA.  The proposed rule defines tributary by establishing characteristics a water must have in order to be considered a tributary.  By providing greater clarity for what is considered a tributary under the CWA, the proposed rule will make it easier to determine if an entity that discharges pollutants into tributaries that feed into a water body in Georgia is responsible for polluting “waters of the U.S.”

No Link Between WOTUS and Georgia’s stream buffers: Recent concerns have been raised over whether the proposed rule will expand stream buffer requirements for waters in Georgia.  These buffers are a creature of state law, not the federal Clean Water Act.  The stream buffer requirements set forth in the Georgia Erosion & Sedimentation Control Act (E&S Act) apply specifically to “state waters,” not to “waters of the U.S.”  The E&S Act requires a 25-foot buffer for all state waters.  State waters are defined by the E&S Act as “any and all rivers, streams, creeks, branches, lakes, reservoirs, ponds, drainage systems, springs, wells, and all other bodies of surface or subsurface water, natural or artificial, lying within or forming a part of the boundaries of the state which are not entirely confined and retained completely upon the property of a single individual, partnership, or corporation.”  Hence, the proposed rule will not affect Georgia’s application of stream buffer requirements to “state waters.”

Furthermore, EPA has clarified that “waters of the U.S.” and “state waters” are separately defined.  Because federal waters and state waters are separately defined, the proposed rule will not affect state water laws.  The proposed rule preserves this federal-state partnership that was established under the CWA and, thus, will not affect state water laws.

For more information on mis-information spread by opponents to EPA’s proposal rule for WOTUS, visit: River Network’s blog; EPA’s “Ditch The Myth” portal; and this NRDC blog post and “tweet report card.”

The deadline for submitting public comments is October 20, 2014.

For more information on the proposed rule, see EPA’s webinars presented on April 7, 2014 and July 16, 2014.

-Chris Manganiello

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