Tributaries, Floodplains and Wetlands Are Now Protected Under New EPA Rule

August 19, 2014- Clamor continues to build over the issue of clean water and what the Environmental Protection Agency (EPA) may do to protect this precious resource.

In a recent report, "Under Water: The EPA's Struggle to Combat Pollution," ProPublica.org writes, "For years, the U.S. Environmental Protection Agency has been frustrated in its efforts to pursue hundreds of cases of water pollution — repeatedly tied up in legal fights about exactly what bodies of water it has the authority to monitor and protect."

The post notes how efforts in Congress to clarify the EPA's powers have been defeated, and that Supreme Court decisions have done little to decide the question.

Here are the highlights of the ProPublica.org post:

• In April, seeking to end the debate and empower the EPA to press hundreds of enforcement actions against alleged polluters across the country, the EPA released a joint rule along with the U.S. Army Corps of Engineers in which it declared for itself what waters were subject to its oversight.

• The new EPA rule explicitly defines tributary, floodplain and wetland as subject to its authority.

• Farmers say the agency is overreaching and have brought immense opposition. One campaign organized and financed by the American Farm Bureau asserts the new rule will give the EPA jurisdiction over farmers' irrigation ditches, watering ponds and even puddles of rain. ProPublica.org reports that the American Farm Bureau Federation's president, Bob Stallman, said the proposed rule was "… the biggest federal land grab — in terms of power over land use — that we've seen to date."

• In an effort to address the concerns of farmers, EPA Administrator Gina McCarthy has been touring states in the Midwest in recent weeks. "There are issues we need to discuss and clarify to get this rule right," she tells ProPublica.org. "We have important work to do. All the silly contentions being brought up — that we intend to regulate dry ground or stock ponds or mud puddles after a rain — all that does is get in the way of our being able to have those serious discussions."

• The Clean Water Act of 1972 authorized the EPA to protect the "waters of the United States" from dangerous and or illegal pollution. Regulators and industry representatives are generally in agreement that the law applies to some of the nation's larger rivers, but the act's phrasing has been disputed over streams that flow intermittently, and the wetlands adjacent to these streams that dry up during the summer.


• EPA officials say that legal fights over those streams and wetlands have cost the agency time, money and effectiveness in the face of real environmental threats. ProPublica.org notes that in recent years the EPA has allowed hundreds of cases of water pollution to go unpunished because it currently lacks the confidence that it can prevail in court.

• An EPA spokesman also said that the proposed rule will improve the process for making jurisdictional determinations for the Clean Water Act by minimizing delays and costs, and will improve the predictability and consistency of the permit and enforcement process for landowners. Also, the EPA expects that improving efficiency in jurisdictional determinations will also save the businesses that they regulate time and money.

• ProPublica.org names two Supreme Court decisions in the last 15 years have been the cause of much uncertainty in the EPA's regulatory function.

- In a 5-4 ruling in 2001, the Court held that the Army Corps of Engineers could not require permits for waters based on their use as a habitat by migratory birds. The Court ruling also included language that seemed to assert that only wetlands with a "significant nexus" to traditional navigable waterways would be protected under the Clean Water Act. The Court did not make clear the meaning of the term "significant nexus."

- In 2006, the Court, asked to determine whether a wetland needed to be adjacent to a traditional navigable waterway in order to be protected, wound up split, and reached no majority decision.

• The EPA estimates 2 million stream miles outside of Alaska are regarded as "intermittent," and 20 percent of roughly 110 million acres of wetlands are considered "isolated." As a result of the inability of the government to clarify the EPA's jurisdiction over the last 15 years, these water bodies are currently unprotected.

• "At some level this is a very frustrating debate to be having because water is all connected at some level," said Jon Devine, a senior attorney in the water program at the Natural Resources Defense Council. "What the Supreme Court's decisions do is throw into significant doubt what is protected."

• In some cases where a polluted waterway isn't clearly under the EPA's jurisdiction, the agency has spent thousands of dollars to model water flow and conduct studies to show that it is hydrologically connected to larger water bodies that are protected.

• ProPublica.org notes that in past years, federal legislators have tried to introduce bills that address the ambiguity in the Clean Water Act's language, but none have passed both the House and Senate.



Read the full ProPublica.org post here.

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