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Proposed changes to Clean Water Act spark debate

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Students cross a bride over a portion of Green Mill Run at East Carolina University near College Hill Drive on March 12. A proposal by the EPA and the Army Corps of Engineers would allow the federal government to redefine what areas are considered “waters of the United States” and are protected by the Clean Water Act.

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By Tyler Stocks
The Daily Reflector

Wednesday, March 20, 2019

Thousands of streams and creeks could become polluted and millions of acres of wetlands destroyed if a new proposal by the Environmental Protection Agency and the Army Corp of Engineers is approved, according to a local river keeper.

But a representative from the North Carolina Farm Bureau said the proposal would provide farmers with clarity about federal regulations by defining what waterways are and are not regulated by the Clean Water Act.

Forrest English, the Pamlico-Tar river keeper voiced his concerns last week, during a local Sierra Club meeting held at the Unitarian Universalist Congregation. English is one of three river keepers employed by Sound Rivers, a private nonprofit organization out of Washington, N.C., that guards the health and natural beauty of the Neuse and Tar-Pamlico River basins.

The proposal by the EPA and the Army Corps of Engineers is for the federal government to redefine what areas are considered “waters of the United States” and are protected by the Clean Water Act.

According to the EPA website, The Clean Water Act establishes the basic structure for regulating discharges of pollutants into U.S. waters and quality standards for surface waters. The basis of the Clean Water Act was enacted in 1948 and was called the Federal Water Pollution Control Act, but the act was reorganized and expanded in 1972.

"Clean Water Act" became the Act's common name with amendments in 1972.

Under the act, EPA has implemented pollution control programs such as setting wastewater standards for industry. EPA also has developed national water quality criteria recommendations for pollutants in surface waters. The act also made it unlawful to discharge any pollutant from a point source into navigable waters, unless a permit was obtained.

“What EPA and the Army Corp is proposing to do is change that definition,” English said.  “And essentially, if (waters) are not defined, the Clean Water Act no longer applies. That would allow pipes to go in, wetlands to be destroyed without a permitting program, so I think you can see how that would affect downstream waters. Everything eventually flows into a larger river. Those wetlands absorb flood waters and without those, I think we all see the effects.

“What they’re saying is, for (water) to be covered, it has to be in physical contact with a navigable waterway at all times,” English said. “The idea is it would exclude streams that only flow in response to rainfall. If you have a wetland — which has a subsurface connection to a nearby river, and that’s how the water is exchanged between the two — it would no longer be covered. So you could put a parking lot on top of it and call it a day.”

Providing clarity

Despite the concerns of English and many environmentalists, groups representing farmers have spoken in favor of the proposal. 

Keith Larick, natural resources director of the North Carolina Farm Bureau said the proposal clarifies things for farmers.  

“Essentially, we feel like we want farmers to be able to look at their land and know something on their land is regulated by the Clean Water Act through the federal government,” Larick said.  “We feel like the 2015 rule that’s in place didn’t really do that.

“Currently, it protects waters too broadly and that can keep farmers from conducting activities that they need to conduct,” Larick said. “We feel like this proposed rule would make some beneficial changes, some common-sense changes that would benefit our farmers.”

When asked about what constituted common-sense changes, Larick pointed to changes in the way some things are regulated.

“Under the existing rule, there’s a lot of ditches that are regulated so farmers have concerns with that,” he said. “We feel that would be a beneficial change. And it kind of draws broader lines about what’s in regulation and what’s out of regulation and we feel like that will be a beneficial change as well.”

Larick also said that the Farm Bureau supports redefining what bodies of water are protected by the Clean Water Act.

“Even under this proposed rule, if pollution gets into something that’s legitimately a stream, that is still going to be regulated,”  Larick said. “We want farmers to be able to look at their land and be able to tell if they have something that’s regulated on their property. That helps them stay in compliance with the law. And we want common-sense regulations that let farmers do their business in an environmentally sustainable way.”

English said that farmers already get a break when it comes to regulation.

“Agriculture received the biggest exemption from the Clean Water Act since its inception,” English said. “Agricultural ditches are explicitly exempted from the Clean Water Act. Farms can pollute almost (as) much they want without consequences. It’s interesting that agriculture is pursuing further exemptions.”

Larick said he personally thinks that English asserting farmers can pollute as much they want is not accurate.  

“Personally, I think it’s a stretch,” he said. “That’s not the way I read the rule.  Farmers depend on water, I mean obviously if you’re irrigating a crop or you’re giving water to livestock, you’re depending on clean water. Farmers want clean water too. I certainly don’t see this as a blank check. There will certainly be plenty of regulations in place.”  

English said that having clean water to drink, fish and swim in is something desired by most people.

“We can say clean drinking water might be a right that people should have access to and that fishing and healthy fisheries is something people should have access to,” he said. “And be able to safely swim in rivers and lakes without getting sick is something we should all have access to.”

The proposal

The EPA and the Army issued a news release on Dec. 11 that explained in more detail what exactly is proposed.

In the release, the agencies said they are proposing “a clear, understandable, and implementable definition of “waters of the United States” that clarifies federal authority under the Clean Water Act.   

“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” said EPA Acting Administrator Andrew Wheeler. “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways. Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals.”

The agencies’ proposal is the second step in a two-step process to review and revise the definition of “waters of the United States” consistent with President Donald Trump's February 2017 Executive Order entitled “Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the ‘Waters of the United States’ Rule.” The Executive Order states that it is in the national interest to ensure that the nation's navigable waters are kept free from pollution, while at the same time promoting economic growth, minimizing regulatory uncertainty, and showing due regard for the roles of Congress and the states under the Constitution.

“EPA and the Army together propose this new definition that provides a clear and predictable approach to regulating ‘waters of the United States.’ We focused on developing an implementable definition that balances local and national interests under the Clean Water Act,” said R.D. James, Assistant Secretary of the Army for Civil Works. “I have heard from a wide range of stakeholders on Clean Water Act implementation challenges. This proposed definition provides a common-sense approach to managing our nation's waters.”

Under the agencies’ proposal, traditional navigable waters, tributaries to those waters, certain ditches, certain lakes and ponds, impoundments of jurisdictional waters, and wetlands adjacent to jurisdictional waters would be federally regulated. It also details what are not “waters of the United States,” such as features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and waste treatment systems.

Public comments still are being accepted on the proposal. The comment period will end on April 15. The proposed rule can be found at https://www.epa.gov/wotus-rule/step-two-revise and the public can comment on the proposal via regulations.gov.

Contact Tyler Stocks at tstocks@reflector.com or 252-329-9566.  

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