Clarifying “Waters of the United States“
Recently, the Environmental Protection Agency (EPA), and Army Corps of Engineers released a final rule under the Clean Water Act that further defines the scope of the “waters of the United States.”
Under the rule, there are three categories of waters for which the reach of federal jurisdiction, for the most part, is not under dispute. These categories are:
- Traditional navigable waters
- Interstate waters
- The territorial seas
Additionally, tributaries near them are generally agreed to be waters regulated by the United States.
Where the largely technical and scientific document (learn more here) stirs up controversy is in its clarification of which rivers, streams, ponds, and marshes are covered.
Under the new rule, many smaller bodies of water, such as wetlands and small streams, have been deemed to exist in relatively the same manner as traditional navigable waters. Therefore, they would often all fall under the jurisdictional reach of the EPA and Army Corps of Engineers. Not surprisingly, this portion of the new rule has caused a bit of political tension, with opponents believing it to be a power grab on the federal government’s part. They believe it will allow officials to penalize and fine landowners—such as farmers—over minuscule issues and, in turn, negatively impact the economy.
Senator David Vitter, a Republican from Louisiana issued a press release on the matter stating, “EPA is moving toward unrealistic mandates with frightening speed, attempting to regulate everything from the fabricated 10 percent ethanol ‘blendwall’ to the puddles in your backyard. These short-sided mandates will force families to pay more for food and at the pump.”
Clearly, the contentious nature of the rule is bringing out strong opinions on both sides of the political spectrum.
On the other side, EPA administrator Gina McCarthy said the new rule wouldn’t largely expand the reach of the Clean Water Act and, in fact, would only do so by roughly 3 percent.
So, who should you believe and what’s really at stake?
It’s tough to say.
Many large businesses have lobbied against the rule and some farmers, for example, feel as though they will have to pay fines if they pollute tributaries that have been dry for long periods of time, but that may still feed larger bodies of water when flooding occurs. Others feel as though protecting waters right at the source is vital because so many people get their drinking water from wetlands and small streams.
Ultimately, much of it comes down to personal viewpoint. Plenty of people will side with big corporations, citing the fact that this rule may make it more difficult for them to do business. Meanwhile, people will continue to support the EPA and Army Corps of Engineers, citing the importance of a healthier environment moving forward.
While the rule will likely be challenged and lawsuits brought forth, if it does remain intact, everyone may just have to adapt and do their best to abide by it—if they don’t want to be fined—until further notice.