The Waters of the United States

Coming soon to federal regulation

On March 31, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) released a proposed rule to expand protection and regulation under the Clean Water Act to streams and wetlands that are merely seasonal. The text of the rule will appear in the Federal Register in April and open a 90 day comment period.

Though the EPA news release called this action a “clarification,” it is tremendous expansion of the scope of the 1972 Clean Water Act which made it illegal to discharge of pollutants into the navigable waters of the United States unless a permit was obtained. The discharge of pollutants regulated under the Clean Water Act was from so called point sources. Point sources are discrete conveyances, such as a pipe. The regulation was intended to stop the free discharge of sewage and industrial waste into our rivers.

The proposed rule expands the definition of navigable waters to apply to include wetlands, seasonal streams and any water that might at any time during the year impact or reach the navigable waters of the United States. In this way the EPA does not see this as an expansion of the Clean Water Act jurisdiction, but it is. The proposed rule will sweep in waters previously considered isolated or exempt and that are a great distance from navigable waters.

For several years EPA has attempted to expand the reach of the Clean Water Act to all waters and discharges to include all sources. Federal authority does not extend to non-point sources, such as from run off from agricultural and urban sources not part of a storm sewer system as well as other small sources such as septic systems. The EPA has been frustrated in their attempts to address what they view as the current generation of environmental problems. These problems are subtle, much less visible to the naked eye because they are from diffuse or non-point sources and often not nearly as susceptible to a top-down, command-and-control approach.

Agriculture is reported to be one or the main non-point sources of water pollution and in studies done in the Chesapeake Bay Watershed and Sacramento River Delta and other locations the contamination from agriculture runoff has been the major source of contamination. Pesticide runoff is a large contributor of known pollutants to the watersheds and may be a significant contributor of endocrine disruptors to the freshwater supply. Both rain feed and irrigated agriculture are sources of contamination of fresh water. Now EPA is making another attempt to expand the Clean Water Act reach to all water and all sources of pollution.

EPA has overcome the challenges of regulating every source of contamination in the Chesapeake Bay Watershed by imposing the Chesapeake Bay pollution diet, the Total Maximum Daily Load (TMDL) mandated to the six Chesapeake Bay Watershed states (Virginia, Maryland, Delaware, New York, Pennsylvania and West Virginia) and the District of the Columbia. The TMDL sets a total Chesapeake Bay watershed limit for the entire region of 185.9 million pounds of nitrogen, 12.5 million pounds of phosphorus and 6.45 billion pounds of sediment per year which is a 25% reduction in nitrogen, 24% reduction in phosphorus and 20 %t reduction in sediment from the current levels. The pollution limits are then partitioned to the various jurisdictions and river basins based on the Chesapeake Bay modeling tools and monitoring data.

The US EPA has mandated these levels and allowed the states (and District of Columbia) to determine how to achieve them (with the EPA’s approval) by threatening to use what they call “back stop measures”, but are simply reductions in the allowed (permitted) releases from point source permits (waste water treatment plants, municipal separate storm sewer systems, and confined animal feed lots) to achieve the TMDL Essentially, they have said do this in a way we find acceptable or we will impose the most direct and expensive method to achieve our clean water goals.

Now, EPA wants to expand their authority to every bit of water in the US and will be able to effectively and directly regulate all sources of pollution without working through the states. If adopted as proposed, this rule will be felt throughout the U.S and in all areas of our economy and lives not previously directly touched by the EPA. It will have a profound impact on many locally regulated activities, including home building, mining, road construction, commercial property development and water infrastructure projects. The capricious application of the federal command and control regulatory scheme will directly impact all our lives.