Stormwater Magazine

Editor’s Comments: We Need to Be All Over This One

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In May, EPA sent a letter to all state governors asking for their input on the new definition of “waters of the US,” also known as navigable waters. An accompanying press release noted that the proposed new definition “is in-line with Supreme Court Justice Antonin Scalia’s opinion in the 2006 Rapanos v. United States case. Scalia’s definition explains that federal oversight should extend to ‘relatively permanent’ waters and wetlands with ‘a continuous surface connection’ to large rivers and streams.”

Once the new definition is in place, there will be public comment period, as there generally is for this sort of rulemaking. That hasn’t happened yet, but when it does, I encourage you to be ready with your comments. Whatever your opinions, who better than the people who deal every day with surface water quality to weigh in on this issue? We might not get another chance for quite some time.

Here’s some background, which most of you are probably familiar with, but it’s worth a brief recap in light of the current situation. In 2014, EPA and the Army Corps of Engineers jointly released the Clean Water Rule, designed to clarify what is covered under the protection of the Clean Water Act. The two agencies emphasized that they were not trying to broaden the original scope of the CWA, only to clarify it.

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Gina McCarthy, EPA administrator at the time the Clean Water Rule was issued, wrote, “The rule only protects waters historically covered under the Clean Water Act. It doesn’t interfere with private property rights, and it only covers water—not land use. It also doesn’t regulate most ditches, doesn’t regulate groundwater or shallow subsurface flows, and doesn’t change policy on irrigation or water transfers.”

Why did the agencies feel the need to issue the rule at all? They said two separate Supreme Court decisions had muddied the waters, so to speak, and confused the issue of what’s actually covered. Those two cases were Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers in 2001 and Rapanos v. United States in 2006. The first dealt with the question of “isolated waters” such as wetlands that are not adjacent to or tributaries of navigable waters. The Army Corps had argued that some of them were covered by section 404 of the CWA—meaning that a permit was required to discharge dredged material to them, for example—and the court disagreed, removing federal oversight from, by some estimates, close to 80% of the country’s wetlands.

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The second case, Rapanos v. the United States, was muddier still, as the Supreme Court did not reach a majority decision. But the case did generate some acrimonious debate among the justices, including fairly scathing rebuttals to the definition that Justice Scalia provided in the plurality opinion—at one point he referred to “swampy lands”—which EPA is citing now as its model. The case was ultimately remanded to a lower court, leaving open to interpretation whether, say, ephemeral streams and wetlands within floodplains are “waters of the US” or not. (These are quick-and-dirty summaries of the two cases. Many excellent summaries of and commentaries on both of them are available online and are worth seeking out.)

Without the Clean Water Rule, EPA and the Corps said, the effects of the Supreme Court’s decisions left nearly 60% of the nation’s streams and wetlands—and the drinking water sources for about a third of the US population—essentially unprotected.

Once it was proposed, the rule faced challenges in court—several states, including Oklahoma, of which EPA administrator Scott Pruitt was then attorney general, sued to block it—and was stayed by the Sixth Circuit Court of Appeals in 2015. A presidential executive order in February of this year called for a review of the rule with an eye toward balancing pollution prevention with promoting economic growth. The move was applauded by the agricultural and development industries, which had strongly opposed the Clean Water Rule.

There will be two public comment periods coming up: one after the Code of Federal Regulations is changed to reflect the definition of “waters of the US” that was in place before the Clean Water Rule was issued, and another—this is the critical one—when the new, Scalia-related definition is proposed.

You might agree with the narrower definition of waters of the US, or you might want to see the Clean Water Rule’s broader definition remain in place; you might agree with the administration that the jurisdiction of these waters would be better left to the states, or you might favor consistent federal oversight. In any event, the outcome of this process is likely to affect your job in several ways. I urge you to offer your informed opinion in the upcoming debate. The public comment periods will begin after the rules are published in the Federal Register. EPA’s page on the rulemaking ( ) will post information, and we will post information and deadlines on Stormwater’s website as well. SW_bug_web

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  1. Before anyone comments on the WOTUS rule, I would respectfully suggest that they read the rule, and to the peer-reviewed science and research on which it is based. The WOTUS rule is based on the review of scientific and peer-reviewed research and was reviewed by an independent panel of scientists. It underwent public hearings and public comment periods, with all comments and concerns being addressed, and revisions being made, before being finalized. As a starting point, I refer you to the EPA Report “Connectivity of Streams & Wetlands to Downstream Waters: A Review & Synthesis of the Scientific Evidence” (EPA/600/R-14/475F, January 2015;, and to the EPA independent Scientific Advisory Board review of this report dated October 17, 2014 (EPA-SAB-15-001; to EPA Administrator Gina McCarthy).

    I have worked as a wetland scientist and water resources specialist for decades. I have delineated hundreds of wetlands and streams, and I understand the hydrological, biological, and ecological connections between wetlands, physically but not functionally isolated wetlands, floodplain and headwater wetlands, headwater streams, and the influence and effects on downstream waters. I

    The agencies believe that the Rule does not exceed the CWA’s coverage of protect new types of waters that have not been protected historically, and would not enlarge jurisdiction beyond what is consistent with the SCOTUS’s narrow reading of jurisdiction. The agencies estimate that only approximately 3% of U.S. waters will additionally be subject to CWA jurisdiction as a result of this Rule (and much of that is in adjacent wetlands and geographically isolated wetlands recognized for their ecological value such as prairie pothole wetlands, vernal pools, and coastal plain pocosins). As before, prior converted croplands, certain ditches, and wastewater treatment and stormwater systems are not jurisdictional, and permit exemptions continue for normal farming and ranching activities.

    One of the complaints made against WOTUS from some in the stormwater management profession states their concern that some stormwater drainage ditches excavated in uplands intersect the seasonal groundwater table and so would be considered to be streams under this rule. If a ditch is excavated deep enough to intersect the groundwater table, yes, by any existing definition the ditch is a stream. Streams, by definition, exist because of the intersection of the groundwater table with the ground surface. If you dig the ditch deep enough to intersect the groundwater table, you are creating an intermittent or perennial stream. And if that ditch empties into a jurisdictional water, it becomes part of that jurisdictional water. The solution to that is, do not excavate drainage ditches deep enough to intersect the groundwater table and create a new stream.

  2. In your article, you note: “Without the Clean Water Rule, EPA and the Corps said, the effects of the Supreme Court’s decisions left nearly 60% of the nation’s streams and wetlands—and the drinking water sources for about a third of the US population—essentially unprotected.”
    Let me re-muddy these waters and suggest from a definitely crass perspective, that this “unprotected” status, if it exists and allows pollution, will greatly raise or enhance the GNP, which enhancement is then seen as a positive. The value of the absorptive capacity for a water body is seen as the cost to return an otherwise clean and functional system to its pristine shape. That value will thus be available. But, we need not stop there. We can now, if these systems are truly unprotected, burn through the absorptive value and transfer the externality cost to others. The market will then help determine allocations.

    Also, pollution may continue but remain unrecognized or be unimportant to those living in an affected area. It only reaches a social issue when deterioration becomes: 1) recognized and 2) some level of action is required, assuming a non-clientele captured regulatory agency. But, here we may not have a regulatory agency. However, until that level of action (exceeding the absorptive capacity), brings about conflict, pollution has not become a problem and regulators, if they exist, are not attracted.

    Others have noted that when the issue generates conflict, it may be expressed either politically—or it may remain unnoticed as merely the over subscription of alternative scarce resources or the overuse of their absorptive capacities.

    In the case of a functional regulatory framework, intervention thus implies a mediation or an arising of conditional pressures, especially as regulation shifts from prescriptions to proscription of behaviour. When that regulation shifts to redistribution, the level of conflict, hence pressure on the regulator rapidly increases. An intervention bringing out conflict may arise affecting any or all of the following: a) the livelihood of users, b) changes in the allocation of yet other scarce resources, c) changes of the law, or d) rearrangement of pricing structures, and rearrangement of market or resource extraction shares and, and thus critically, impacting bureaucratic comfort levels within the regulatory body—assuming existence of such a body..

    With respect to the water environments, some of the leading opinions claim that the level of pollution is not important. Its advocates claim that this will induce innovations that can cope with the problems. These opinions are diametrically opposed to others who claim that pollution is widespread and serious. There are doubts, however, as to whether current standards and induced innovations can cope with current pollution. These doubts seem well founded but these issues open opportunities, again seeing an uplift in GNP.

    Those advocating innovation will argue that, far from being finite, water actually becomes cheaper and more plentiful as technology finds and creates new resources and uses existing resources more efficiently—e.g. Desal or reclaimed sewer water. In this context, degradation of water exists, but taken as a whole—it is unimportant. The more technically advanced society becomes, the less it is dependent upon the natural endowments and processes. To wit, the Israeli or former Soviet method is one of ignoring the source—rather, effort is spent on cleaning to the appropriate use.

    This obviates the need to keep all water supplies at the drinking water quality level or aquatic life sustenance level, unless there is some “economic” value to that aquatic life. The trick here is in the costs and benefits ascribed during the economic analysis background. But, are the C/B analyses comprehensive enough to reflect true costs? If environmental inputs are neglected, as is often seen within current analyses, then an entirely different picture of impact is presented.
    However, remember, money and the bottom line speak volumes. For drinking water, the for-profit agencies may see themselves shifting from selling water as a product to selling water only a service. This may obviate part of the problems associated with liability. An interesting court case, if you had not seen it, is Hartwell. That case might throw a wrench into the system of quality control.
    In the Hartwell decision, the California Supreme Court upheld the jurisdiction of the Public Utilities Commission over private utilities. The decision, while pulling the private agencies out, left all the public agencies in the lawsuit. In his analysis of this, Wicks noted that “Only if plaintiffs can prove that EPA standards were violated can private companies be sued in court.” (see:
    The issue is not simple. For example, at the 2006 at the Environmental Law Conference in Yosemite, various papers were delivered. Session # 27 was to contain some interesting insight into this area of non-action by regulators. Non-action is a term relating to the behavior of regulators when they know that a problem exists but that problem cannot be dealt with for mainly political reasons. In the case of the paper delivered in Yosemite, the topic was xenobiotics in groundwater

    Of particular interest in this session was the analysis of the Safe Drinking Water Act by one of the US/EPA drinking water toxicologists. His delivered paper ended with the following: “Bottom line on almost all of the “emerging” contaminants that have attracted attention: It will be a long time, if ever, before they are regulated under the SDWA.”

    Thus, the market place will be the arbitrator here.

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