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The EPA Clean Water Rule: A Work in Progress

The Environmental Protection Agency has drafted and published the Clean Water Rule. The EPA has already presented it to community stakeholders and held public comment meetings. Now the Rule has been sent to the Office of Management and Budget which oversees the interagency review of the Rule. It has also been forwarded to the White House. The EPA crafted the Clean Water Rule in tandem with the Army Corps of Engineers.

While the title of the regulation seems quite benign, aspects of the Clean Water Rule have not been without controversy. The major nexus of controversy seems to be the determination of which bodies of water fall under the aegis of the regulation and which do not. The EPA intends to preserve the water purity of water, tributaries and wetlands, but EPA critics are concerned that ditches, agricultural runoff streams and storm drainage and sewer systems must be excluded from the regulation oversight.

Delineating exactly which waterways are required to comply with the Clean Water Rule is essential for homeowners, commercial and agricultural businesses, as well as municipal, state and federal authorities. If a waterway is required to comply with the Clean Water Rule, then those entities must receive official permission when making any changes that are perceived by the EPA as harmful to the waterways.

The EPA maintains that the Clean Water Rule protects citizens’ health, protects the economy and protects ecosystems.

Some of the fine print still under discussion:

  • Defining whether a waterway is significant or flows into a significant larger body of water. This could have a big impact on the many smaller waterways that empty into rivers and lakes that flow into the Great Lakes system in Michigan and bordering states.
  • Narrowing the definition of “tributary”. Does it mean rivers and creeks or does it also mean ditches and dry creek beds?
  • Determining which ditches actually do empty to other significant tributaries and therefore should be considered part of the waterways and tributaries. A previous version of the Rule called these “upland ditches”, but that nomenclature proved to be a sticking point during the public comment phase.

We will continue to watch the progress of the Clean Water Rule as the final changes are crafted and published.

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