EPA Proposal Could Reduce Federal Protection for Waterways

A new EPA proposal redefines which waterways are protected by federal environmental regulations.
December 12, 2018

INDIANAPOLIS – A new proposal by the U.S. Environmental Protection Agency and the Department of the Army could remove the federal protections of thousands of miles of waterways in Indiana and the rest of the U.S.

The proposal has been praised by farm and utility organizations, among others, as less burdensome than the rules it would replace. But environmental groups have called it reckless and dangerous and have vowed to fight it in court.

The new rule would change what the EPA defines as “water of the United States,” or waterways within the jurisdiction of federal protections mandated by the Clean Water Act.

In 2015, the Obama administration established WOTUS definitions to place eight broad categories of waterways, such as tributaries and interstate waters, under federal jurisdiction. Opponents of the rule argued that the definitions were purposely ambiguous and would allow the federal government to impose jurisdictional protections at will.

The proposed "Waters of the United States" definition would change which water sources would be protected by federal standards.

Indiana government officials like Gov. Eric Holcomb and outgoing U.S. Senator Joe Donnelly welcomed the Trump administration’s efforts to establish the new definitions.

“Indiana knows best how to preserve our state’s waterways and a one-size-fits-all approach from Washington disrupts the predictable regulatory climate we need for continued innovation and economic growth,” Holcomb wrote in June 2017.

The Trump administration’s proposal sought to clarify the definition and give states more jurisdiction over waterways. The proposed rule simplified the EPA’s WOTUS definitions to “ordinary meaning of the term, such as oceans, rivers, streams, lakes, ponds, and wetlands,” and delineated that not all waterways fell under WOTUS protection.

“For the first time, we are clearly defining the difference between federally protected waterways and state-protected waters,” said acting EPA administrator Andrew Wheeler. “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 Hoosier Environmental Council’s environmental health director, Dr. Indra Frank, says the proposal reduces protections for wetlands and ephemeral streams, or streams that flow only during a period of rainfall. That, she says, is tantamount to dumping pollution directly into rivers.

“This proposal from the EPA and Army Corps does not acknowledge the interconnection of all of our waterways and wetlands,” Frank said. “So what they’re trying to determine is which waters are protected by the Clean Water Act and which are not. So in essence they’re asking, ‘where are we going to allow pollution to be dumped “Allowing pollution into the ephemeral stream is the same thing as letting them flow into the same rivers that EPA claims it’s still protecting.”

The new EPA "WOTUS" definitions would remove protections from wetlands and ephemeral streams.

Farmers, utilities and organizations criticized for waterway pollution cheered on the proposal.

The American Farm Bureau Federation approved the proposal and sent state farm bureau presidents, including newly re-elected Indiana Farm Bureau president Randy Kron, to attend the proposal’s signing ceremony in Washington, D.C.

“We believe this new Clean Water Rule is rooted in common-sense,” said American Farm Bureau Federation president Vincent “Zippy” Duvall. “It will protect our nation’s water resources and allow farmers to farm.”

Earlier this year, an Environmental Working Group report found that erosion and runoff from farms posed a serious threat to drinking water sources in several Midwestern states, including Indiana. The proposed rule could decrease the amount of federal oversight and protection over farming water pollution.

The National Rural Electric Cooperative Association, which represents 900 electric cooperatives in the U.S., applauded the replacement of what it called “significant overreach of the federal government’s authority to regulate water and land.” Power facilities faced increased scrutiny for their water pollution, especially with regards to coal ash threatening drinking water in several parts of Indiana.

“We look forward to working with regulators on a more workable and lawful regulation, one that allows electric co-ops to conduct maintenance and build new infrastructure without triggering additional and more onerous permitting requirements,” the NRECA said in a statement.

The Golf Course Superintendents Association of America also approved the proposal and was present at the signing. The GCSAA warned that the Obama-era WOTUS definition would have a “devastating economic impact” on golf courses.

“Our superintendents are committed environmental stewards who protect the quality of waterways by applying physical, agronomic and environmental best management practices, such as correct mowing, Integrated Pest Management, nutrient management and other environmental practices,” said GCSAA CEO Rhett Evans. “GCSAA support (sic) efforts to follow the principles of cooperative federalism under the Clean Water Act by working with all stakeholders, including golf course superintendents, to write a better rule.”

Golf courses have long been known to be sources of urban runoff. Pesticides, fertilizer and nutrients from golf courses can pollute and threaten nearby water sources. The proposed rule change could decrease environmental and pollution oversight at golf courses.

Proponents say the EPA's proposal will help farmers and other business owners prosper, but critics say the proposal threatens drinking water sources.

National environmental groups have come out against the rule change proposal and promise to fight it in the courts.

“This proposal is reckless, and we will fight to ensure it never goes into effect,” said Jon Devine, director for the Federal Water Program at the Natural Resources Defense Council. “Given the problems facing our lakes, streams and wetlands from the beaches of Florida to the drinking water of Toledo, now is the time to strengthen protections for our waterways, not weaken them.”

Earthjustice president Abigail Dillen called the proposal a “full attack on clean water for millions of Americans.”

“Make no mistake: we will make use of the full strength of our nation’s bedrock environmental laws to protect families and communities from dangerous attacks like this,” Dillen said. “We will hold this administration accountable in court as we have from the start.”

EPA Proposal Could Reduce Federal Protection for Waterways