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Context for EPA’s new water rules

Updated: Jun 5, 2020

The May 27 Clean Water decision

New rules designed to clarify the Federal Government’s role in regulating water pollution were announced on May 27

On May 27, President Obama announced new water rules designed to clarify the Federal Government’s role in regulating pollution in the nation’s rivers, lakes, streams, and wetlands. The White House claims the new rules would apply to about 60% of the country’s bodies of water. (For more information about the specifics of The President’s announcement, click here for The New York Times’ coverage).

My first reaction to the new rules is that they are a Washington answer to a Washington problem – more specifically, I don’t see how these new rules will help the Army Corps of Engineers’ field offices do their job. The existing guidance leaves room for professional interpretation and gives Corps districts much-needed flexibility to address serious problems without undue strain on their resources.

Implementing this new guidance will likely be a significant added burden on the Corps, interpreting the Supreme Court’s “significant nexus” opinion. At this year’s budget hearings, the Assistant Secretary of the Army for Civil Works asked for additional resources for the Regulatory Program. In response to a question, she said that additional resources would be needed to implement the new definition of “Waters of the United States”.

Some historical context is helpful. The program’s original regulations, published shortly after passage of the Clean Water Act of 1972, specified that Corps’ districts would make the jurisdictional determination, but could seek advice from EPA. The district would make the final decision on the individual permit application, again after coordination with the EPA regional office. EPA could only object to that decision at the national level.

The program wound up being workable, a surprise to many, and three results deserve special notice:

First, Section 301 of the Clean Water Act prohibited disharges of pollutants into waters of the United States, unless EPA or the Corps issued a permit. The definition of “fill material” included in the original regulations excluded solid wastes. EPA insisted that waste disposal was its responsibility but did not establish a permit program for it. That agency took responsibility for the decision that discharges of solid wastes were both illegal and impermissible.

Second, in the initial regulations, Corps Headquarters issued the Headwaters Nationwide Permit. Work in small streams needed no action by Corps regulators if the permittee followed proper site management practices. There was little incentive to challenge Federal authority when normal best management practices would resolve all issues.

Third, in 1980, the Corps and EPA negotiated and adopted the 404(b)1 Guidelines, which specified the water quality related decision criteria to be used by Corps regulators when evaluating Clean Water Act permits. These were in addition to the public interest criteria that apply to other Corps permits.

These complex new guidelines are sure to spark intense debate in Congress and legal challenges. A single blog isn’t nearly enough to cover all the issues involved with the new rules. Stay tuned – we’ll be blogging about many of the issues at hand in the future.

Jim Durkay Senior Advisor

A member of the Dawson team since 1999, Jim spent 25 years in the Army Corps of Engineers where he helped execute the Corps’ responses to the Supplemental Appropriations Act of 1985 and write its following legislation, the Water Resources Development Act of 1986.


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