New rule would protect seasonal and rain-dependent streams

About one in three Americans get drinking water from public systems that rely in part on these streams

Orlan Love
Published: March 25 2014 | 4:08 pm - Updated: 1 April 2014 | 10:09 am in

Most seasonal and rain-dependent streams, which make up about 60 percent of the nation’s stream miles, are protected under the Clean Water Act, according to a proposed rule issued Tuesday by the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers.

The proposed rule, which also protects wetlands near rivers, clarifies “protection for the upstream waters that are absolutely vital to downstream communities,” said EPA Administrator Gina McCarthy.

About one in three Americans get drinking water from public systems that rely in part on these streams, the EPA and Army Corps said.

The clarification had been sought after U.S. Supreme Court decisions in 2001 and 2006 introduced confusion and complexity into the determination of which streams and wetlands were covered under the Clean Water Act.

Those rulings “clearly stated that there are limits to federal jurisdiction,” said Rick Robinson, environmental policy manager for the Iowa Farm Bureau Federation.

“We do not believe the EPA has adequately considered the economic and practical implications of this rule on the nation’s cities, farmers, and businesses,” he said.

Asserting that the proposal expands federal regulation into areas traditionally managed by the states, Robinson said previously distributed draft rules proposed to regulate any standing water in a farm field, private pond or road ditch that the government decides is “connected” to a “water of the U.S.”

“As EPA and the Army Corp. of Engineers grab more authority, it will be difficult, if not impossible, to make ordinary farming decisions in a timely manner,” he said.

EPA and the Corps said the proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture.

Those agencies said they have coordinated with the U.S. Department of Agriculture to develop an interpretive rule to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements.

Any agriculture activity that does not result in the discharge of a pollutant to waters of the U.S. still does not require a permit.

The proposed rule does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of the act’s jurisdiction, the agencies said.

During the next 90 days, the agencies will host meetings and gather input needed to shape a final rule.

“When finalized, this rule would be the biggest step forward for clean water in more than a decade,” said Michelle Hesterberg, a field organizer with Environment Iowa, an advocate of Clean Water Act protections.

Streams and wetlands trap floodwaters, recharge groundwater supplies, remove pollution and provide habitat for fish and wildlife. Their role in fishing, hunting, agriculture, recreation, energy and manufacturing benefits the economy.

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