Breaking News... EPA and US Army Finalize Clean Water Rule

EPA and US Army Finalize Clean Water Rule
Today, the U.S. Environmental Protection Agency and the U.S. Army finalized the Clean Water Rule which will be effective 60 days after publication in the Federal Register.  According to EPA and the Army, the rule “ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry.”  EPA and the Army further state that “[T]he rule is grounded in law and the latest science, and is shaped by public input” and that “[T]he rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.” EPA and the Army also prepared fact sheets related to specific sectors, including local government and utilities fact sheets.  

In general, the Clean Water Rule maintains the current status of municipal separate storm sewer systems (MS4s) and encourages the use of green infrastructure to protect water quality. Existing jurisdictional determinations and permits continue to be valid until they expire. According to EPA and the Army, the Rule promotes more consistent and effective implementation of Clean Water Act regulatory programs and sets the stage for permit streamlining during implementation. The Clean Water Rule also preserves agricultural exemptions from dredged or fill permitting requirements. More specifically, the Clean Water Rule, according to EPA and the Army:

• 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.

According to the EPA and the Army, this final rule is necessary in order to provide clarity on protections under the Clean Water Act after decisions by the Supreme Court in 2001 and 2006 caused confusion and were complex and time-consuming.  EPA and the Army state that in developing the rule, the agencies held more than 400 meetings with stakeholders across the country and reviewed over one million public comments.  EPA and the Army also testified before Congress on numerous occasions over the last few months. 

WEF is in dialogue with EPA to host a webinar specifically tailored to the wastewater sector and we will disseminate that information as soon as possible.  WEF will also publish a more detailed description of the rule contents affecting wastewater utilities.