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EPA proposes significant rollback of federal water protections

The newly defined "Waters of the United States" has some celebrating a correction of federal overreach while others fear environmental destruction.

The Environmental Protection Agency (EPA) announced plans to significantly scale back the reach of the Clean Water Act, sounding the alarm for some and a celebration for others.

The new rule redefines which waterways fall under the designation "Waters of the United States," or WOTUS. The Trump EPA would no longer include isolated wetlands and streams that don't flow year-round.

The new rule focuses its regulatory authority on what are called navigable waters, which means there's enough water for a vessel. It also continues to regulate any other waterways that are next to navigable waters and exist year-round.

"These waterways are indeed connected, whether it is through groundwater or wetlands, and what goes on in these areas dramatically impact the health of navigable waters. Plus, these waterways have their own intrinsic value as well," said Puget Soundkeeper Alliance Executive Director Chris Wilke. "This would impact everything. Right now, our waters are protected against toxic pollution from mining, from stormwater, from agricultural pollution, from sewage effluent, from industrial wastewater."

Wilke recently took a picture of a dried stream bed near the Snoqualmie River, a seasonal waterway which flows with snowmelt and heavy rains. It's a good example, he says, of what would not be regulated under the new rule.

"This is an attempt to massively eviscerate one of the most effective environmental laws in this country, the Clean Water Act," said Wilke. "This regulation, if it is confirmed, would take us back to the days before the Clean Water Act."

For Senator Doug Ericksen (R-Ferndale), the move is a positive one that clarifies the Clean Water Act which he says has been difficult for states to implement.

"Everything will still be regulated. The state of Washington has the ability to regulate these waterways right now, and we are doing so. They just can't blame the feds for the overreaching regulations anymore," said Sen. Ericksen. "So, I think the Obama administration overreached, and I think the Trump administration, like in so many places, is making a natural correction to what happened under Obama."

According to a summary of the 2015 rule in the Federal Register, however, the Obama EPA made WOTUS more narrow.

"The scope of jurisdiction in this rule is narrower than that under the existing regulation. Fewer waters will be defined as "waters of the United States" under the rule than under the existing regulations, in part because the rule puts important qualifiers on some existing categories such as tributaries. In addition, the rule provides greater clarity regarding which waters are subject to CWA jurisdiction, reducing the instances in which permitting authorities, including the states and tribes with authorized section 402 and 404 CWA permitting programs, would need to make jurisdictional determinations on a case-specific basis," the 2015 rule reads.

For Ericksen and others, it didn't narrow the scope in practice.

"The state of Washington already has a much broader law," said Ericksen. "What happens in the situation is now the Department of Ecology and bureaucrats can't blame the federal government. They have to take responsibility for their actions."

While some environmental groups plan to sue, lawsuits by agricultural groups have held up the Obama rule for years.

"The number of states where the WOTUS rule has been temporarily blocked by the courts has risen to 28, leaving the 2015 WOTUS rule in place in 22 states. AFBF is deeply involved in the ongoing legal battles and is using all available means to block implementation of the illegal 2015 rule," reads the American Farm Bureau Federation's website.

For some, it's an example of why states, not the federal government, are a more effective and efficient avenue for water protection.

"Put simply, using a top-down government approach to solve distributed problems is not only costly, it is ineffective. The problem of runoff is real, but this is a 1970s solution to a 2018 problem. First, managing runoff and water is very important. A centralized approach, however, is unlikely to be effective. Distributed efforts that engage farmers are much more likely to solve a distributed problem. Agencies simply don't have enough staff to enforce the existing rule, so enforcement is essentially random. It also leads to absurd decisions, such as when the Army Corps of Engineers called furrows in a plowed field, 'small mountain ranges.' This isn't a good way to protect water quality or help farmers comply," said Washington Policy Center Environmental Director Todd Myers. "Second, the existing rule was extremely expensive and created some real unintended consequences. In California, for example, it made it difficult – or impossible – to switch from crops that use a lot of water, like rice, to orchards and other crops that used less water. Under the WOTUS rule, when people changed land uses, like planting a different crop, they had to go through a new permitting process, which made responsible changes costly. This is actually counterproductive and harms the environment. This is a hard problem. In Washington state, Conservation Districts do a good job of working with farmers to protect water quality while dealing personally with farmers to address problems."

For Wilke, however, states don't have enough power.

"It is true that Waters of the State is more broadly defined than Waters of the U.S., at least in our state.  But this is not the case in all 50 states, so many waterways around the country would lose protection entirely.  But that is not the complete picture," said Wilke.

Wilke sent KING 5 the following statement:

"In short, the Clean Water Act is designed to protect the biological and physical integrity of the nation's waters in order to protect beneficial uses such as swimming, drinking and fishing. It is one of our cornerstone environmental laws and has been emulated by many other countries around the world. We need the Clean Water Act to protect fisheries and the community right to clean water."

"Most broadly, the Clean Water Act confers strong federal oversight into a state's activities to protect waterways from pollution or destruction. The framers of the Clean Water Act understood that we could not fully trust the states and local governments to implement the needed protections for our waterways because they were often subject to political pressure from powerful special interests, and could also be starved of resources by unfriendly legislative actions. This federal backstop has time and time again served as an effective tool to ensure that adequate protections are put in place. Most recently the US EPA overruled the State of Washington on an important revision to human health criteria for toxic pollution, based on fish consumption rates  – reducing allowable pollution limits significantly for some of the most toxic chemicals. We are better protected today as a result. The EPA also recently disapproved our state's non-point pollution control plan because it did not go far enough to regulate agricultural pollution and now the state is going back to revise its policies. Without this backstop, it would actually create more pressure on the state from powerful special interests to further weaken protections. This would result in a "race to the bottom," potentially pitting one state against another to provide a more favorable regulatory climate to polluting industries."

"From its inception, the Clean Water Act has included a "citizen suit" provision (Section 505), which has proven to be a very important benefit for waterways and communities, and this is not allowed under state law.  Under this provision, if State or federal agencies fail to act to stop illegal pollution, any person or organization with an interest in that waterway can bring a case to force compliance with the law and protect their right to clean water. This is an important distinction between state and federal.  Clean Water Act penalties are also significantly higher, $52,414 – over 5x the state maximum – which is important for deterrence."

"Finally, state law does not cover the broad range of water issues to the extent that the Clean Water Act does.  The Clean Water Act section 404 covers dredge and fill permits regulated by the Army Corps of Engineers to ensure that waterways are protected from unregulated alteration, dredging and filling, which can destroy the biological function of a waterway if not the waterway altogether. The Clean Water Act requires rigorous National Pollution Discharge Elimination System (NPDES) to be strengthened every five years, to regulate the discharge of pollutants down to levels that do not harm aquatic life or human health. And the Clean Water requires states to periodically assess the overall quality of their waters and put any "impaired" waterways that fail to meet water quality standards on a pollution diet known as a Total Maximum Daily Load (or TMDL) to reduce the pollution and bring the waterway itself back into compliance."

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