Clarified water: Unlikely allies collaborate to make law clearer

“It is life, I think, to watch the water. A man can learn so many things.”


– Nicholas Sparks,

The Notebook


Today’s question: When is a waterway a waterway?


Try this one: If it is a waterway, is it subject to regulation?

Still confused? Then you have a sense of how the federal government feels. This whole issue of defining a regulated waterway has been confounded by the U.S. Supreme Court.

What does this mean to you? It could be as simple as that ditch in front of your home being declared a regulated waterway. That’s right. You might be under the watchful eye of the ditch police! May sound a bit far-fetched, but as a practical matter it is not far from the truth.

Two years ago, the Environmental Protection Agency and the Army Corps of Engineers wanted to improve “predictability and clarity” in the enforcement of the Clean Water Act. It wasn’t helpful that jurisdictions crossed, and interpretations differed by district. So they teamed to propose formal guidance to identify waters protected by the CWA. Both agencies noted in their joint announcement that the number of protected waters “will increase,” but the number never was quantified.

Now, can you imagine the reaction when two of the most vilified agencies in the federal government – the EPA and the Corps of Engineers – are doing something together? (All you needed to do to create a perfect storm was to throw in the IRS, but the tax people were too busy chasing the Tea Party.)

Industry responded in a cool way – not for what was proposed, but for what wasn’t offered. For example, the National Association of Clean Water Agencies wanted a formal rule to clearly define the matter of jurisdiction. Responding to a lesser offer of guidance, NACWA wanted to be sure that wastewater treatment systems, storm sewer systems, wetland treatment systems and roadside and agricultural ditches were exempt.

The public comments rolled in, but no guidance was ever issued in 2011. Or in 2012 either. For that matter, no guidance was issued this year.

So come the fall of 2013, cooler temperatures bring cooler heads. The EPA and the Corps are changing course and will give industry what they want – a rule. The draft rule to clarify jurisdiction of the Clean Water Act was sent to the Office of Management and Budget for interagency review Sept. 17.

As is customary, the government doesn’t share drafts of its rules while other agencies are reviewing them. So we’re not sure exactly what it says.

We do know this much. Writing in The Washington Post, Lenny Bernstein says the proposed rule “would help farmers, ranchers, developers and others understand which streams and wetlands retain Clean Water Act protections.”

Many believe this regulation will clearly define jurisdiction over waterways that do not always carry water and wetlands that are not connected to active rivers and streams.

The EPA says it will rely on science to help it develop the policy. That’s good to hear, because it’s the model followed by the Southeastern Natural Science Academy for the past 17 years. We’ve been delivering unbiased science to our local and state regulators in a way that helps guide their decision-making.

Back to the EPA. At the same time the proposed rulemaking was sent to OMB, the agency put out for review a draft report titled “Connectivity of Streams and Wetlands to Downstream Waters.” This 331-page book looks at a thousand peer-reviewed scientific papers. In December, EPA’s Science Advisory Board will hold three days of meetings to take public comments and finalize the scientific assessment.

The agency is using the science to understand the connectivity or isolation of streams and wetlands to large bodies of water – the factors that influence them and the way they physically, chemically and biologically affect waters downstream.

Generally, the report says streams have an impact downstream no matter how often they flow or how much water they carry. The impact for open waters and wetlands is the same.

Although the proposed rule has not yet been published in the Federal Register, the study is available on the EPA’s website.

The government’s motives appear in order. The agencies are targeting the network of small streams that flow into larger rivers. They at last will clarify the protection of wetlands that “filter and trap pollution, store water and help keep communities safe from floods.”

The proposed rule, say EPA and the Corps, will not change current regulatory exemptions, but will in fact expand conservation programs by providing greater clarity on what is not covered and greater certainty on what is protected.

“Clarity” and “certainty” are not two words usually associated with government regulation. If two of the most hated agencies in the federal system are able to articulate a regulatory policy that protects the environment and does not damage our fragile economy, they will indeed be charting new waters.

And we will be safe from the ditch police for another day.


(The writer is a former mayor
of Augusta; a former regional director for the Atlanta Region of the U.S. Department of Housing and Urban Development; and HUD’s former acting assistant deputy secretary for field policy and management.)



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