EPA tries again to explain water jurisdiction rule

The Environmental Protection Agency (EPA) released seven pages of questions and answers Monday on its proposal to redefine which lakes and streams it can regulate.

The explainer is the latest attempt by the EPA to respond to backlash from Republicans and business groups who say the “waters of the United States” proposal from March would significantly expand the EPA’s jurisdiction.

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The document thoroughly explains what the 1972 Clean Water Act did, how two Supreme Court decisions made the EPA’s authority murky and what the new proposal would do to fix it.

“We are hopeful that it will help inform the comments we receive and the conversations we are having with stakeholders, to allow the agencies to have a better understanding of how the rule and preamble can be written as clearly as possible when the final version is completed,” the agency wrote.

Importantly, the document said the proposal would not expand the agency’s jurisdiction.

It said the original law included all bodies of water that have connections to interstate commerce. But the Supreme Court narrowed the jurisdiction to navigable waterways and those with a “significant nexus” to them, leaving a “gray area” where the EPA would have to determine jurisdiction on a case-by-case basis.

“This gray area creates uncertainty, litigation risk for some landowners, and inconsistent application of the CWA,” the agency said.

The EPA did say that the rule would expand the area of its jurisdiction by 3 percent, or about 1,500 acres nationally. That is largely because the rule clarifies some definitions, it said.

But the increase is only relative to the EPA’s authority after the Supreme Court cases. When compared with the jurisdiction before those cases, the new proposal represents “a substantial reduction” in waterways covered.

The agency also said that if private land is protected by the Clean Water Act, it does not mean the government controls the water.

“If you’re not polluting these water bodies, you don’t need any sort of permit,” it said. “Also, normal farming practices that involve dredged or fill material, regardless of jurisdiction, do not need a permit, since the law permanently excludes those practices.”