The Environmental Protection Agency (EPA) in 2015 adopted a rule regarding “Waters of the United States” that determines what bodies of water are subject to the federal Clean Water Rule. Earlier this month, EPA repealed that rule and now plans to replace it with a new definition that Washington-based industry say provides needed clarity after four years of regulatory uncertainty. While the full effects of the yet-approved rule are unknown, stakeholders say that a clearer definition of waters subject to regulation is a step in the right direction.
“Clear definitions are always preferable,” Building Industry Association of Washington (BIAW) Government Affairs Director Jan Himebaugh said. “For us, that’s incredibly helpful for members who are building in a relatively wet part of the country.”
BIAW opposed the 2015 rule during the public comment period, writing that “expanding federal jurisdiction with duplicative regulation simply brings with it unintended harm to state and local economies without providing any measurable level of increased environmental protection.”
Since the rule was implemented, Himebaugh said it has created confusion over how many jurisdictions builders need to submit what kind of permits to – and for what types of projects. The result has been more paperwork, more delays and ultimately additional project costs.
The EPA’s vague definition has also meant that practically any body of water could qualify.
“We used to joke: ‘The puddle in your driveway could in fact be a water of the U.S., depending on who showed up to your driveway,’” Himebaugh said.
Washington Farm Bureau Chief Executive Officer John Stuhlmiller told Lens that the proposed rule will provide a “clean, crisp definition for what it is and what it isn’t. Producers on the ground can say ‘yes that (water) is definitely covered.’”
He added that until now, the 2015 rule “created a really murky line. We didn’t know what was within federal statute.”
However, the actual regulatory impacts of EPA’s draft rule, if approved, may not be great. Northwest Pulp and Paper Association Chris McCabe told Lens that regardless of what EPA decides, it doesn’t directly involve members of that organization. “Our members discharge wastewater into major rivers and streams that have been (already) regulated under the Clean Water Act.”
Stuhlmiller also said while it may provide “modest protection against frivolous lawsuits,” the regulatory regime won’t change much for farmers due to the state’s water quality standards, which EPA is also looking to replace with a rule previously submitted by the Washington Department of Ecology.
“We’ve got more stringent standards than the core of WOTUS (Waters of the United States),” Stuhlmiller said. “In the simplest sense, we already exceed what’s happening. A clear jurisdiction means less litigious activity. We benefit in Washington from that, but we don’t get a lot of the relief that these (bodies of water) are no longer covered.”
In addition to the new EPA rule, Himebaugh said that “how our (Ecology) department decides to move forward….is very important.”
The 2015 rule repeal will take effect Dec. 23.