After Many Years EPA Finalizes Waters of the U.S. Rule

For those interested in the real life implications of this rulemaking, my friend, Mike Rolband, one of the top wetlands expert in the country, created an extraordinary map – in the vein as Lewis and Clark expedition – depicting the various jurisdictional scenarios in the land of Wetlandia.  As I told Mike, I expect to see SCOTUS studiously reviewing the map once this issue gets back to the Court. You can visit and purchase Mike’s masterpiece, Wetlandia Map here.

[Update 5/28/15:  EPA has finalized the rule, available here.  Significant changes were made between the proposed and final, in part providing greater clarity on the federal government’s reach under the Clean Water Act.  Notably, the final rule includes for the first time lateral limits on the federal government’s reach.  However, these changes are not likely to quell industries’ and states’ criticism and concern regarding the overbreadth of the rule and associated costs. Safe prediction: The WOTUS battles will continue.]

[Update 2/5/15:  Administrator McCarthy testified for nearly 3 hours yesterday, along with Assistant Secretary Darcy.  Fair to say that the Administrator brought her A-game and seems determined to fix some of the big problems with the rule.  Only time will tell – as they say, the proof will be in the pudding in April when the rule is scheduled to be finalized.  Yesterday’s was an unusual bi-cameral hearing between the Senate and House.   For those who are interested, you can watch the theatre here]

As folks who read this blog know, I’ve been somewhat critical of EPA’s proposed rule redefining Waters of the U.S. for several reasons, mostly because, contrary to the Agency’s stated purpose of providing greater clarity, certainty and predictability, the draft rule widely missed its mark.  Yesterday, EPA released its final report titled “Connectivity of Streams & Wetlands to Downstream Waters:  A Review & Synthesis of the Scientific Evidence.”  The rule raises many important policy and legal issues, which no doubt will continue to play out in the public sphere and courts.  The science involving the connectivity of waters is complex, but the politics and policy are even more complicated.  My criticism should not be mistaken for a lack of care about the importance of protecting water and wetland resources.  As I’ve said before, the question is not whether they are important or should be protected, but rather protected by what means, by whom and at what cost?  Here is a link to a Federal Society debate I had a few years back with Jim Murphy of the National Wildlife Federation, for whom I have great respect.  Point-Counterpoint: Repairing the Clean Water Act.   There is a balance that needs to be found and can be found.  Given the importance of this issue, I feel it is only fair that I offer in this space a perspective from my friend, Ken Kopocis, who heads EPA’s Office of Water and who is a strong advocate for the rule.

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Ken-Kopocis_avatar_1411075036By Ken Kopocis (from EPA’s Blog)

At EPA, we utilize the latest and best available science to inform our decisions. This extends to our rule to protect clean water that we are developing jointly with the U.S. Army Corps of Engineers. We aim to release it in spring 2015.

This week our Office of Research and Development released its final assessment of the science on how streams and wetlands are connected and affect downstream waterways. Referred to as the connectivity report, it is a review of more than 1,200 pieces of independent, peer-reviewed, and published scientific literature. In short, this research shows us how streams and wetlands impact the rivers, lakes, bays, and coastal waters they flow into. About 60 percent of stream miles in the U.S. only flow seasonally or after rain, but they have a considerable impact on downstream waters. And approximately 117 million people – one in three Americans – get their drinking water from public systems that rely on these streams. Streams and wetlands provide many benefits to communities – they trap floodwaters, recharge ground water supplies, remove pollution, and provide habitat for fish and wildlife. They’re also economic drivers because they support fishing, hunting, agriculture, recreation, energy, and manufacturing. Science shows that these streams and wetlands are vital to our health and the environment, so we are committed to protecting them as we develop our final Clean Water Rule. EPA and the Army Corps of Engineers wouldn’t finalize the Clean Water Rule until the final science report was available, but have factored in science findings throughout the process of drafting the Clean Water Rule, including:

  1. Release of the draft connectivity report in 2013.
  2. Input from EPA’s Scientific Advisory Board at public meetings in 2013 and 2014 and in written comments submitted by the SAB in October 2014.
  3. Regular updates on changes to the connectivity report from our Office of Research and Development during fall 2014.

As our agencies work to finalize the Clean Water Rule, we are considering all scientific research we’ve reviewed in addition to the nearly 900,000 public comments that were submitted. We have listened carefully to the feedback from everyone on the draft proposal during the seven months it was open for comment. We greatly appreciate the valuable input and thoughtful suggestions, and will be making changes to the final rule as part of our commitment to getting it right. Our goal is to find a balance that reflects the best science, is reasonable for all parties, and protects the clean water we depend on.

Update:  The EPA and Corps have received over 1M comments on this proposal, including comments from the various states, such as here from Pennsylvania.  While many would expect states to be supportive of the rulemaking, and some are, others such as PA are very unhappy.  Here is one excerpt from PA’s comments, “Pennsylvania is . . . frustrated, disappointed and frankly,  alarmed, to discover that in formulating this rulemaking, EPA is relying on inadequate and inaccurate information regarding the breadth and scope of state law programs.”  Most states, like Pennsylvania, have their own states laws that protect state waters, including many waters the EPA rule is aimed at protecting, e.g., ephemeral streams and isolated wetlands.

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