Waters of the US (WOTUS): Myths and Truths

October 3rd, 2017
By Heather Nix

There have been a lot of misconceptions about the Clean Water Rule, which the EPA is considering rolling back. Upstate Forever works closely with utilities, landowners, and municipalities to protect the critical waters of Upstate South Carolina, and we believe the Clean Water Rule is an essential tool to prevent confusion and to ensure the health of our waterways. Below, we’ve laid out some of the common myths about the Rule, and provided accurate information. 

Myth: “The Clean Water Rule created confusion.” 

Truth: On the contrary, the Rule is a response to confusion created by Supreme Court decisions and the Rule provides more clarity than ever before by clearly defining how it is to be applied.

As a result of the Supreme Court’s split decision in the Rapanos case (2006), Justice Scalia issued an opinion indicating that streams and wetlands with a “significant nexus” to navigable waters should be considered Waters of the US.  The blurry distinction left it up to individual US Army Corps of Engineer (ACOE) Districts to interpret what constituted a “significant nexus” – and led to complications and uncertainty for developers, consultants, and regulators over which waters were protected.    

The Rule was created following a lengthy public involvement process that took into account over one million comments.

The Clean Water Rule: 

  • Uses clear, measurable physical boundaries
  • Reduces the need for burdensome case-by-case analysis
  • Clearly defines the limits of tributaries (i.e., bed, bank, ordinary high water mark) and distinguishes them from dryland ditches and erosional features.
  • Narrows the historic scope of Clean Water Act jurisdiction, excluding some wetlands and other waters protected for decades prior to the 2001 Supreme Court SWANCC ruling.
  • Improves the case for protecting important wetlands located beyond river floodplains, such as the prairie potholes, western vernal pools in California, carolina and delmarva bays and pocosins along the Atlantic coastal plain, and Texas coastal prairie wetlands.

Myth: “Protecting small streams isn’t important.”

Truth: Small “headwater” streams join to create rivers and lakes and the health of the small streams dictates the health of larger water bodies.

Like the capillaries that connect to our arteries, the health of small streams and wetlands is critical to the health of our nation’s rivers, providing key benefits in the form of clean water, flood control, food supply, habitat, and biodiversity.  If we want clean water for drinking, fishing, recreation, and industrial uses we MUST protect headwater streams.

Myth: “The Clean Water Rule is too broad and will protect ‘puddles and ditches.’”  

Truth: The Rule explicitly states exclusions, including features that serve only to convey rainwater or are entirely man-made.

The Clean Water Rule specifically excludes:

  • Drainage ditches not constructed in streams and that flow only when it rains
  • Artificially irrigated areas that would revert to upland should irrigation cease
  • Artificial lakes or ponds constructed on dry land and used for agricultural purposes
  • Artificial ornamental waters created in uplands for primarily aesthetic reasons
  • Water-filled depressions created as a result of construction activity
  • Groundwater, shallow subsurface flow, tile drains
  • Gullies, rills, grass swales

Myth: “The 2015 Clean Water Rule was a power grab that significantly expanded waterways considered ‘Waters of the US’ and would make it more difficult to farm or change a farming operation to remain competitive and profitable.”

Truth: The Clean Water Rule sets a clear standard that actually constricts the jurisdiction of the EPA under the Clean Water Act. The Rule also continues previous exemptions, including those for farming and forestry.

The Clean Water Rule restates exemptions for:

  • Most common farming and ranching practices, including “plowing, cultivating, seeding, minor drainage, harvesting for the production of food, fiber, and forest products
  • Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches
  • Agricultural stormwater discharges and return flows from irrigated agriculture
  • Temporary sediment basins on a construction site
  • Construction or maintenance of farm or forest roads or temporary roads for moving mining equipment.

Myth: “The Clean Water Rule has slowed development and reduced job opportunities.”

Truth: The rule actually increases predictability for developers and simplifies the permitting process by removing subjectivity and confusion from decisions on what qualifies as WOTUS.

Additionally, clean water fuels tremendous economic development ($887 billion in annual spending) and 7.6 million jobs. Paddling, hunting, and fishing drive much of this – and all rely on healthy wetlands and headwater streams to provide clean water, strong fish stocks, and healthy game animal populations. Clean water also lowers treatment costs for drinking water and industrial facilities.

Please contact your state legislators and tell them clean water is important to you. Ask them to tell the EPA that they support the Clean Water Rule, and that any changes should follow the same procedures that were used to create it. 

Heather Nix is Upstate Forever's Clean Water Director and can be reached at hnix@upstateforever.org.

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