EPA introduces stream and wetlands rule

Proposal seeks to clarify definitions under Clean Water Act

By Andrew Clevenger / The Bulletin / @andclev

WASHINGTON — The Environmental Protection Agency unveiled Tuesday its proposed new rule that seeks to clarify the definition of public waters protected under the federal Clean Water Act.

The new rule would include many streams and wetlands, even those that sometimes run dry over the course of the year, as part of the protected “Waters of the U.S.” Passed in 1972, the landmark anti-pollution bill subjects public waters to government regulation and permitting, and established civil and criminal penalties for polluters.

“For four decades, the Clean Water Act has safeguarded our rivers, lakes, wetlands and coastal waters. But over the last 15 years, two complicated court decisions have tangled up implementation of the law,” said EPA administrator Gina McCarthy as she announced the proposed rule. “Using the best available science, we can identify and protect interconnected wetlands and streams that are vital to healthy waters and vital to healthy communities downstream.”

Oregon-based environmental groups cheered Tuesday’s announcement, which was made in conjunction with the U.S. Army Corps of Engineers.

Rikki Seguin, a conservation advocate with Environment Oregon, said the proposed rule would close loopholes in the Clean Water Act that leave 53 percent of Oregon’s streams and millions of acres of wetlands at risk of unchecked pollution and development.

“With the drinking water for 1.7 million Oregonians at risk, we’re thrilled to see the EPA moving forward to protect our waterways,” Seguin said. “Today’s action is about securing that all our water is safe and healthy. Whether we’re rafting on the Rogue, fishing in our favorite stream or just drinking the water that comes from our tap, we need Oregon’s waterways to be clean and protected.”

Jim McCarthy, spokesman for WaterWatch of Oregon, said the announcement was particularly welcome news for Oregon’s small streams, which are important for fish, wildlife and people.

“Smaller streams provide critical habitat for the salmon and steelhead that spawn in tributaries and many other species of fish, birds, plants and insects. In the inland regions of Oregon, small streams also provide genetic reservoirs for bull trout, Lahontan cutthroat trout and many other species,” he said.

Agricultural and industrial groups criticized the proposed rule, which will soon be subject to a 90-day comment period. After that, the EPA will review the comments and incorporate any changes it deems necessary before publishing its final rule.

The EPA’s proposal goes too far, said Kevin Kelly, the president of the National Association of Home Builders, in a prepared statement.

“EPA was told to make changes to the rule so that everyone understands exactly when a builder needs a federal wetlands permit before turning the first shovel of dirt,” Kelly said. “Instead, EPA has added just about everything into its jurisdiction by expanding the definition of a ‘tributary’ — even ditches and manmade canals, or any other feature that a regulator determines to have a bed, bank and high-water mark. It’s a waste of taxpayer resources to treat a rainwater ditch with the same scrutiny as we would the Delaware Bay.”

A spokesman for the American Farm Bureau Association said the organization’s staff was still analyzing the rule and could not yet comment.

The new rule would not expand the Clean Water Act’s jurisdiction, but clarifies where it does and does not apply, according to the EPA. Current exemptions, including those for upland waste treatment systems that already comply with the Clean Water Act, would still be exempt, for example.

Several sportsmen’s organizations, including the American Fly Fishing Trade Association, Izaak Walton League of America, National Wildlife Federation, Theodore Roosevelt Conservation Partnership and Trout Unlimited, praised the new rule as good for hunters and fishers.

“The proposed rule takes a moderate approach — based on the best available peer-reviewed scientific evidence — that falls within the limits of the Supreme Court decisions,” said Scott Kovarovics, executive director of the Izaak Walton League of America, in a prepared statement. “It preserves the existing exemptions for farming, forestry, mining and other land use activities, such as the exemption in the existing regulation for many wetlands converted to cropland prior to 1985, as well as exemptions written into the Clean Water Act itself that cannot be changed by administrative action.”

— Reporter: 202-662-7456, aclevenger@bendbulletin.com