The landmark Clean Water Rule closes loopholes and clarifies the scope of the Clean Water Act
Puddles, you fall out of the federal protection, if ever you enjoyed it anyway
By Tom Bennett
Special to Hiwassee River Watershed Coalition
Town of Murphy, Cherokee County, N.C., June 14, 2015 – The Clean Water Rule signed in Washington, D.C. May 27th by top officials for the U.S. Army Corps of Engineers and Environmental Protection Agency “closes loopholes that historically allowed polluters to dump waste into the streams and wetlands that feed our drinking water supply.” That’s from the Center for Effective Government (formerly OMB Watch) in Washington, D.C.
“Among those who know enough about the Clean Water Rule to express an opinion about it, support outnumbers opposition by four to one,” according to a nationwide telephone survey by Hart Research Services last month. It was completed for for the League of Conservation Voters, also in the nation’s capital.
And the Clean Water Rule is a “landmark” in the protection or streams, wetlands and other waters, writes the National Wildlife Federation of that city. The federation continues:
“Called for by voices on all sides of the debate and the Supreme Court, this rule relies on the best scientific understanding of stream and wetland science. It promises to clarify the scope of the Clean Water Act, reinforce the Act’s legal and scientific foundations, provide greater long-term certainty for landowners, and enhance protection for America’s streams, wetlands, and other waters.”
MANY A U.S. LOCALE could claim to be most needful for the reforms of the Clean Water Rule and its clarification of the 1972 Act. Yet a case can be made for this three-state area in the Blue Ridge Mountains.
Here, particularly in N.C. private lands near the Great Smoky Mountain National Park and adjoining or adjoining parts of two national forests, you sense a deep-seated stubbornness toward compliance with federal water regulations. It appears that vigorous pushing of the limits of the Clean Water Act are overt acts to make up for the exclusion from private property that was done by those massive federal set-asides of the last century.
In addition, this area’s overdue for the Clean Water Rule reforms since it is a significant collection point for waters of the giant Mississippi River delta – a freshwater source for much of the nation.
Here a covey of Tennessee Valley Authority reservoirs in mountains generates hydroelectric power and then sends the water on toward the Gulf of Mexico. However clean the dedicated TVA engineers and the municipal wastewater-plant operators may be able to make the water, it enters intakes serving millions of people along the Hiwassee, Tennessee, Ohio and Mississippi rivers. Families in those locations have a right to expect careful stewardship of the water up here. They want to enjoy good health and long lives. Is upstream protection of the water an American responsibility? You bet it is.
In a decade of volunteering via this column to aid a small, determined non-profit to teach about water quality up here, I’ve had times when I’ve weathered harsh disappointments. However, I’m happy to say that at other times, I’ve been encouraged by what has happened
One of those is last month’s signing by Gina McCarthy, Administrator of the EPA, and Jo Ellen Darcy, Assistant Secretary of the Army (Civil Works), of the Clean Water Rule in Washington, D.C. It then was unveiled by President Obama from the White House.
No one is naïvely suggesting opposition will now wane among U.S. farmers and industrialists – plus a sizable number of the members of the House and Senate. I await with interest whatever’s to occur to modify the Clean Water Rule in the 114th Congress. In the meantime, I make the following good-faith effort to document what exactly it was the agencies agreed upon. At least thanks to item 2G in the definitions below, it’s certifiably no longer valid for critics to have fun saying, “EPA stands for every puddle in America.”
Over and over, the agencies state the following in their fact sheets:
“This document is a prepublication version… Please refer to the official version in a forthcoming Federal Register publication, which will appear on the Government Printing Office’s website http://fdsys.gpo.gov/fdsys/search/home.action) and on Regulations.gov (http://www.regulations.gov) in Docket No. EPA-HQ-OW-2011-0880. The final rule will become effective 60 days after the publication date in the Federal Register. As described in the preamble, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency make identical changes in the final Clean Water Rule at 33 CFR 328.3 and 40 CFR 110.1, 112.2, 116.3, 117.1, 122.2, 232.2, 300.5, part 300App. E, 302.3 and 401.11.”
CLEAN WATER RULE DEFINITIONS
From https://www.epa.gov/cwa-404/documents-associated-2015-clean-water-rule
The term waters of the United States means:
(i) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(ii) All interstate waters, including interstate wetlands;
(iii) The territorial seas;
(iv) All impoundments of waters otherwise identified as waters of the United States under this section;
(v) All tributaries, as defined in paragraph (3)(iii) of this section, of waters identified in paragraphs (1)(i) through (iii) of this section;
(vi) All waters adjacent to a water identified in paragraphs (1)(i) through (v) of this section, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters;
(vii) All waters in paragraphs (A) through (E) of this paragraph where they are determined, on a case-specific basis, to have a significant nexus to a water identified in paragraphs (1) (i) through (iii) of this section. The waters identified in each of paragraphs (A) through (E) of this paragraph are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1)(vi) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.
(A) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually occurring in depressions that lack permanent natural outlets, located in the upper Midwest.
(B) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain.
(C) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.
(D) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.
(E) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas Gulf Coast.
(viii) All waters located within the 100-year floodplain of a water identified in (1)(i) through (iii) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs(1)(i) through (iii) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in (1) (i) through (iii) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (1) (vi) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (1)(vi), they are an adjacent water and no case-specific significant nexus analysis is required.
(2) The following are not “waters of the United States” even where they otherwise meet the terms of paragraphs (1)(iv) through (viii) of this section.
(i) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act.
(ii) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
(iii) The following ditches:
(A) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary.
(B) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands.
(C) Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (1)(i) through (iii) of this section.
(iv)The following features:
(A) Artificially irrigated areas that would revert to dry land should application of water to that area cease;
(B) Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds;
(C) Artificial reflecting pools or swimming pools created in dry land;
(D) Small ornamental waters created in dry land;
(E) Water-filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water.
(F) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways; and
(G) Puddles.
(v) Groundwater, including groundwater drained through subsurface drainage systems.
(vi) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land.
(vii) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater recycling.
(3) Definitions — In this section, the following definitions apply:
(i) Adjacent. The term adjacent means bordering, contiguous, or neighboring a water identified in paragraphs (1)(i) through (v) of this section, including waters separated by constructed dikes or barriers, natural river berms, beach dunes, and the like. For purposes of adjacency, an open water such as a pond or lake includes any wetlands within or abutting its ordinary high water mark. Adjacency is not limited to waters located laterally to a water identified in paragraphs (1)(i) through (v) of this section. Adjacent waters also include all waters that connect segments of a water identified in paragraphs (1)(i) through (v) or are located at the head of a water identified in paragraphs (1)(i) through (v) of this section and are bordering, contiguous, or neighboring such water. Waters being used for established normal farming, ranching, and silviculture activities (33 U.S.C.1344(f)) are not adjacent.
(ii) Neighboring. The term neighboring means:
(A) All waters located within 100 feet of the ordinary high water mark of a water identified in paragraphs (1)(i) through (v) of this section. The entire water is neighboring if a portion is located within 100 feet of the ordinary high water mark;
(B) All waters located within the 100-year floodplain of a water identified in paragraphs (1)(i) through (v) of this section and not more than 1,500 feet from the ordinary high water mark of such water. The entire water is neighboring if a portion is located within 1,500 feet of the ordinary high water mark and within the 100-year floodplain;
(C) All waters located within 1,500 feet of the high tide line of a water identified in paragraphs (1)(i) or (1)(iii) of this section, and all waters within 1,500 feet of the ordinary high water mark of the Great Lakes. The entire water is neighboring if a portion is located within 1,500 feet of the high tide line or within 1,500 feet of the ordinary high water mark of the Great Lakes.
(iii) Tributary and tributaries. The terms tributary and tributaries each mean a water that contributes flow, either directly or through another water (including an impoundment identified in paragraph (1)(iv) of this section), to a water identified in paragraphs (1)(i) through (iii) of this section that is characterized by the presence of the physical indicators of a bed and banks and an ordinary high water mark. These physical indicators demonstrate there is volume, frequency, and duration of flow sufficient to create a bed and banks and an ordinary high water mark, and thus to qualify as a tributary. A tributary can be a natural, man-altered, or man-made water and includes waters such as rivers, streams, canals, and ditches not excluded under paragraph (2) of this section. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if, for any length, there are one or more constructed breaks (such as bridges, culverts, pipes, or dams), or one or more natural breaks (such as wetlands along the run of a stream, debris piles, boulder fields, or a stream that flows underground) so long as a bed and banks and an ordinary high water mark can be identified upstream of the break. A water that otherwise qualifies as a tributary under this definition does not lose its status as a tributary if it contributes flow through a water of the United States that does not meet the definition of tributary or through a non-jurisdictional water to a water identified in paragraphs (1)(i1) through (iii) of this section.
(iv) Wetlands. The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas.
(v) Significant nexus. The term significant nexus means that a water, including wetlands, either alone or in combination with other similarly situated waters in the region, significantly affects the chemical, physical, or biological integrity of a water identified in paragraphs (1)(i) through (iii) of this section. The term “in the region” means the watershed that drains to the nearest water identified in paragraphs (1)(i) through (iii) of this section. For an effect to be significant, it must be more than speculative or insubstantial. Waters are similarly situated when they function alike and are sufficiently close to function together in affecting downstream waters. For purposes of determining whether or not a water has a significant nexus, the water’s effect on downstream (1)(i) through (iii) waters shall be assessed by evaluating the aquatic functions identified in paragraphs (A) through (I) of this paragraph. A water has a significant nexus when any single function or combination of functions performed by the water, alone or together with similarly situated waters in the region, contributes significantly to the chemical, physical, or biological integrity of the nearest water identified in paragraphs (1)(i) through (iii) of this section. Functions relevant to the significant nexus evaluation are the following:
(A)Sediment trapping,
(B)Nutrient recycling,
(C)Pollutant trapping, transformation, filtering, and transport,
(D)Retention and attenuation of flood waters,
(E)Runoff storage,
(F)Contribution of flow,
(G)Export of organic matter,
(H)Export of food resources, and
(I) Provision of life cycle dependent aquatic habitat (such as foraging, feeding, nesting, breeding, spawning, or use as a nursery area) for species located in a water identified in paragraphs (a)(1) through (3) of this section.
(vi) Ordinary high water mark. The term ordinary high watermark means that line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank, shelving, changes in the character of soil, destruction of terrestrial vegetation, the presence of litter and debris, or other appropriate means that consider the characteristics of the surrounding areas.
(vii) High tide line. The term high tide line means the line of intersection of the land with the water’s surface at the maximum height reached by a rising tide. The high tide line may be determined, in the absence of actual data, by a line of oil or scum along shore objects, a more or less continuous deposit of fine shell or debris on the foreshore or berm, other physical markings or characteristics, vegetation lines, tidal gages, or other suitable means that delineate the general height reached by a rising tide. The line encompasses spring high tides and other high tides that occur with periodic frequency but does not include storm surges in which there is a departure from the normal or predicted reach of the tide due to the piling up of water against a coast by strong winds such as those accompanying a hurricane or other intense storm.
WHAT THE CLEAN WATER RULE DOES
From http://www2.epa.gov/cleanwaterrule/what-clean-water-rule-does
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 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.
I CLOSE BY URGING bright first-year undergrads to choose the water sciences as their majors, and also say I hope lawyers who have worked pollution cases in the watersheds of the Hiwassee and Tennessee rivers vie for judgeships. Skirmishing over how ardently to protect the quality of water in this nation is never going to end. The affirmative side just got a leg up.
Tom Bennett of the Martins Creek community near Murphy, N.C., was a retired newsman, Hiwassee River Watershed Coalition member/volunteer/donor and recipient of the 2015 Holman Water Quality Stewardship Award. Tom died on December 28, 2020.