Water Quality

Against the stream: The future of the federal Clean Water Rule

A pitched battle is being waged over which water sources warrant federal protection under the Clean Water Act. Who’s right, and who will prevail?

WASHINGTON, DC — “In June, federal environmental agencies proposed to scrap an Obama-era rule explicitly defining which waters fall under the Act’s jurisdiction. Waters such as rivers, lakes, and coastal seas have always been protected under the law, but whether or not to include streams and wetlands in its purview has been fiercely debated.

Published in 2015, the Clean Water Rule clarified the scope of the Clean Water Act to protect these and other bodies of water, drawing praise from ecologists and most environmental groups and withering attacks from farmers, developers and Congressional critics, including John Boehner, the former House Speaker, who called the rule a ‘raw and tyrannical power grab’” that would put businesses “on the road to a regulatory and economic hell.” Among other things, critics say the rule puts vast amounts of private land under federal control, and defines protected waterways so expansively that development and agriculture would be subjected to onerous and extensive layers of red tape with questionable environmental benefits….

Ironically, developers and farmers who have fought the rule may see little relief if it is repealed, according to Reagan Waskom, director of the Colorado Water Institute at Colorado State University. In passing the rule, the Obama administration had hoped to create greater clarity and reduce the number of case-by-case significant-nexus evaluations, which can drag on for years and consume thousands or even millions of dollars. In one particularly egregious case, Northern Integrated Supply Project, a proposed reservoir and water distribution project in Colorado’s Northern Front Range, has been negotiating its Clean Water Act permit since 2004. More than $18 million has been spent on site investigations so far, and the permit has yet to be granted.

Withdrawing from the Clean Water Rule would put regulation back to where it was in the 1980s, Waskom said, with uncertainty surrounding how we interpret requests for determining jurisdiction. Getting a new rule in place will take a long time, he added. Meanwhile, the Clean Water Act will remain in force, and the agencies will still have to implement the law in accordance with existing standards.”

— Charles Schmidt, Undark.org

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