“Waters of the United States” Rulemaking & Montana

by Wade Fellin

On April 21, 2014, EPA and the Corps proposed sweeping changes to the nearly 40-year-old regulatory definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA).

The legal definition of “waters of the United States” is critically important to Upper Missouri Waterkeeper’s work protecting and improving water resources management and community health in Southwest and West-Central Montana. If adopted as written the new regulations would mean that only waters included within the new definition can be protected under existing, key, core water quality protections and pollution prohibitions of the CWA.

The new “WOTUS” proposal is based on the latest peer-reviewed science demonstrating that protection of upstream waters is essential to realizing the Clean Water Act’s principal goal of restoring and maintaining the chemical, physical and biological integrity of our nation’s waters. Ensuring that these waters are fully protected under the Clean Water Act is essential to protecting our nation’s economy, drinking water supplies, recreational users and fisheries. Some members of Congress are pushing legislation to undermine the Clean Water Act and the definition of “Waters of the U.S.”

Talking Points 

  • EPA should be allowed to proceed with its rulemaking process and get full input from the public on the proposed definition.We oppose all legislation, amendments or riders that seek to interfere with or stop the agencies from continuing to seek and consider public stakeholder input on this rulemaking. It is every American’s right to participate in the development of policies that impact the health of their waterways and communities. We further oppose any legislation that would prevent EPA and the Corps from carrying out their duties under the Clean Water Act through rulemaking, regulation, enforcement, and issuance of guidance documents on issues related to or substantially similar to the subjects addressed in this rulemaking. Such overbroad proposals could have severe, unintended consequences that would undermine implementation and enforcement of the Clean Water Act across the country and endanger the health and livelihoods of the public.
  • EPA needs to strengthen the definition of “waters of the United States” in this proposed rule and remove certain limitations and exemptions that will undermine important Clean Water Act protections. A strong, clear definition is essential to protecting our nation’s waters. The definition of “waters of the United States” must protect all streams, wetlands, tributaries, lakes, reservoirs, rivers, and coastal waters from pollution to the fullest extent allowed by law as intended by Congress.
  • Waters should not be exempted from CWA protections to satisfy the demands of industry groups or in response to unfounded misrepresentations about the scope and impact of the rule on small farmers from the American Farm Bureau Federation – a group that has a well-documented track record of partnering with large, multi-national agribusiness corporations on policies, litigation and legislation that harm the independent farmer while claiming to represent their interests. (source)
  • TRIBUTARIES: All tributaries, including headwater streams, intermittent/ephemeral streams and ditched or channelized streams, should be protected. The EPA and the Corps should not require the presence of an “Ordinary High Water Mark” in order to protect these waters as this concept is wholly unrelated to whether a creek, stream or river contributes pollutants to downstream waters. This is a legal distinction with key importance for Montana! Headwater creeks, streams, rivers, and channelized or ditched waterways can provide important beneficial public uses and can have substantial impacts on downstream water quality even if they do not have a line on the “shore” that demonstrates a level of ordinary high flow. Significant numbers of creeks, streams and rivers have been ditched or channelized across the country, and ditching/channelization increases the flow of water and pollutants to downstream waters.
  • Protection of headwater streams is essential to maintaining downstream water quality as “stream networks play an intrinsic role in the delivery of nitrogen and other pollutants to downstream receiving waters from headwater locations throughout watersheds.” (source)According to EPA, “[a]bout 117 million people, over one third of the total U.S. population, get some or all of their drinking water from public drinking water systems that rely at least in part on intermittent, ephemeral, or headwater streams. In the continental U.S., 357,404 total miles of streams provide water for public drinking water systems. Of that total, 58% (207,476 miles) are intermittent, ephemeral, or headwater streams. (source)
    • The GAO has documented that the definition of “Ordinary High Water Mark (OHWM)” is inherently ambiguous and that the Corps has had difficulty identifying the OHWM in watersheds, even on major rivers, but it is especially difficult in areas where streams had been modified (ditching/channelization) and in the West where flooding and intermittent flows are prevalent.
  • Ditches: The proposed ‘ditches’ definition should not categorically exempt ditches from CWA protections. “Drainage ditches are integral parts of the agricultural landscape, and act as major conduits for nutrients such as nitrogen and phosphorus from agricultural lands to receiving waters.” (source)
    • Discharges of bacteria and nutrients through agricultural ditches can reduce the quality of downstream drinking water supplies and force the closing of recreational waters. (source) For example, in North Carolina, the state reports that CAFOs are having a “significant negative impact on Neuse River water quality” and many facilities and associated land application areas have ditches that “are direct conveyances for highly nutrient laden water to reach surface waters.” (source)
    • It is often difficult to determine whether a “ditch” is constructed in uplands or is actually a channelized stream. This is especially true in Montana!
    • Ditches can contribute significant pollutant loads to creeks, streams and rivers during intermittent or ephemeral flow events because they are designed for the purpose of rapidly transporting water downstream. TMDLs, aka “pollution diets,” for many tributaries in the Gallatin Valley recognize that agricultural land use is a significant contributor to the unhealthy state of local waterways due to the interconnectedness of the Valley’s ditches, irrigation systems, and surface waters!
  • Farm Bureau Issues: EPA and the Corps must not exempt waters from long-standing CWA protections to accommodate special interests. Exemption of waters that have long been protected by the CWA will endanger public health and the environment, including drinking water supplies, recreational users and fisheries. If EPA exempts waters from clean water protections to accommodate agribusiness advocates, it will affect CWA protections for a broad range of other pollution sources.
    • The proposed rule is focused solely on what waters will be protected under the CWA. It is not establishing any new regulatory programs or exemptions from regulatory programs.
    • Contrary to Farm Bureau’s statements on its “Ditch the Rule” website, EPA is not designating “wet areas” or “depressions” in fields, nor “nearly every drop of water that falls” as protected waters under the CWA.
    • EPA is not proposing to regulate any new agricultural activities under this proposed rule, including the activities of concern to Farm Bureau such as the construction of fences, weed and insect control on farmland, house construction, or tree planting. EPA is only proposing to identify which waters will be protected under the CWA, and is actually proposing to protect fewer waters than are covered under the existing definition.
    • CWA protections for streams, rivers, wetlands, lakes, and other waterbodies are essential if we want to address nutrient pollution. Nutrient pollution is the most widespread pollution problem in the United States – affecting major estuaries like the Chesapeake Bay and North Carolina’s Pamlico Sound, as well as roughly 30% of streams and rivers and 20% lakes surveyed across the country. (source, source) According to the EPA, “[i]n the Mississippi River Basin, which spans 31 states and ultimately drains into the Gulf of Mexico, nutrients from row crops  and concentrated animal feeding operations contribute the most nutrient pollution.” (source)
      • Nutrient pollution in the Mississippi River Basin is responsible for created of the Dead Zone in the Gulf of Mexico, as well as eutrophic conditions and harmful algal blooms throughout the basin that are degrading public drinking water supplies, harming fisheries and often make the waters unsafe for swimming and other recreation.
      • Row crop agriculture and concentrated animal feeding operations are the largest source of nutrients to Lake Erie. Nutrient pollution of Lake Erie is causing toxin-producing algal blooms that caused more than 400,000 citizens of Toledo, Ohio to be without drinking water for two days.
      • The proposed rule does not change existing exemptions from regulation under the CWA for agricultural activities. Only discharges of pollutants from point sources can be permitted under the NPDES program and agricultural stormwater discharges are expressly exempted. Because of this, nonpoint source runoff of nutrients and other pollutants from row crop agriculture is not subject to NPDES permitting requirements under the CWA no matter how EPA defines “waters of the United States.” These contributions, however, can be addressed by the states through state laws and through the CWA Total Maximum Daily Load program.
      • Farm Bureau’s opposition to the proposal appears to be directed at preventing or at least further weakening regulation of CAFOs under the CWA. This would be consistent with the Farm Bureau’s national strategy. For example, in the Chesapeake Bay, Farm Bureau and partners including the Fertilizer Institute, the National Pork Producers Council, the National Corn Grower’s Association, the National Chicken Council, the U.S. Poultry and Egg Association, and the National Turkey Federation, are mounting a legal challenge to the national cleanup plan for Chesapeake Bay that was developed by the EPA and the Bay states – claiming that, in part, that EPA threatened and coerced the states into adopting implementation plans. (source) These implementation plans, among other things, address pollution from CAFO operations that are currently inadequately regulated by the states. No Bay state has objected to the Chesapeake Bay TMDL or the implementation planning.
      • Concentrated Animal Feeding Operations, large industrial-scale livestock confinement operations, are subject to regulation under the CWA because they are defined by the CWA as point sources. There are roughly 238,000 CAFOs in the U.S. and these facilities are a significant source of nutrient and pathogen discharges across the United States. CAFOs often discharge pollutants through ditches and ditched or channelized streams or directly into headwater, intermittent and ephemeral streams that may not have a clearly defined “Ordinary High Water Mark” or flow year-round but transport substantial amounts of pollution to our nation’s waters nonetheless. Given the national scale of pollution caused by these operations, the proposed rule should not exclude waters that commonly receive nutrient and pathogen discharges from Concentrated Animal Feeding Operations. This is especially important given the fact that EPA and the states are already failing to regulate these operations. For example:
        • As of December 2013 EPA and the states are only regulating 36% of the largest facilities (regulating 6,557 of 18,462 large facilities)– i.e. a facility confining more than 125,00 broiler chickens or 10,000 swine under 55 pounds. (source) (See State Statistics below) Although regulation of CAFOs has been a National Enforcement Priority since 1998 because of the significant impacts to rivers, lakes and estuaries across the country, the percentage of the largest facilities regulated under the CWA has actually decreased from 42% in 2011. (source)
        • Ohio is regulating only 17% of the largest CAFOs under the CWA.
        • North Carolina is regulating only 1 % of the largest CAFOs under the CWA.
        • California is regulating only 16% of the largest CAFOs under the CWA.
        • Delaware and Virginia are regulating 0% of the largest CAFOs under the CWA.
  • EPA should not exempt impounded waters that are to be used as wastewater treatment systems from CWA protections and should allow the public to comment on their proposal.