Clarifying The Clean Water Act’s Reach

After a years-long tussle with Congress and other stakeholders, the Obama Administration on May 27 issued a regulation that spells out which U.S. waterways are protected under the Clean Water Act, the federal law that controls water pollution and aims to conserve wetlands.

“For the water in the rivers and lakes in our communities that flow to our drinking water to be clean, the streams and wetlands that feed them need to be clean too,” Environmental Protection Agency Administrator Gina McCarthy says of the new regulation.

The highly detailed rule defines and clarifies federal protections for tributaries as well as streams that are intermittent or perennial. For example, it specifically excludes from regulation ditches that have seasonal flows of water. Uncertainty over whether this type of ditch would be included under the Clean Water Act was a major point of contention with the regulation’s opponents.

The rule came under immediate fire from many industry groups and congressional Republicans representing agricultural states. For instance, the U.S. Chamber of Commerce, a powerful business lobby, says the rule will “significantly broaden federal regulatory jurisdiction over private activities on land and in waterways, wetlands, and drainage ditches.”

Rep. Lamar Smith (R-Texas), head of the House of Representatives’ Science, Space & Technology Committee, says the rule gives EPA “the power to restrict Americans from making decisions about their own property.”

Bills moving through Congress—including H.R. 1732 and S. 1140—would force EPA to scrap the new regulation and require the agency to rewrite the rule with broader input from stakeholders. In addition, the rule is expected to be challenged in federal court.