Clean Water Rule Finalized
Today, the U.S Environmental Protection Agency (EPA) announced the finalized Clean Water Rule, or Waters of the U.S (WOTUS) regulation.
Specifically, the Clean Water Rule:
• Clearly defines and protects tributaries that impact the health of downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water—a bed, bank and ordinary high water mark—to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
• Provides certainty in how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.
• Protects the nation’s regional water treasures. Science shows that specific water features can function like a system and impact the health of downstream waters. The rule protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
• Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.
• Maintains the status of waters within Municipal Separate Storm Sewer Systems. The rule does not change how those waters are treated and encourages the use of green infrastructure.
• Reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.
A permit is only needed if a water is going to be polluted or destroyed. The rule only protects the types of waters that have historically been covered under the Clean Water Act. It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows or tile drains. It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field. The rule addresses the pollution and destruction of waterways—not land use or private property rights.
The rule protects clean water necessary for farming, ranching and forestry and provides greater clarity and certainty to farmers about coverage of the Clean Water Act. The rule does not create any new permitting requirements for farmers. Activities like planting, harvesting and moving livestock have long been exempt from Clean Water Act regulation, and the Clean Water Rule preserves those exemptions.
The Clean Water Rule will be effective 60 days after publication in the Federal Register.