The U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) are seeking comments on a proposed rule that would define the scope of waters protected under the Clean Water Act (CWA). The new "Waters of the United States" rule, released on March 25, is intended to clarify which streams and wetlands fall under the jurisdiction of the Act after two Supreme Court rulings removed protection for isolated wetlands and other ephemeral water bodies over a decade ago. Many wildlife conservation and outdoor recreation organizations, including the Wildlife Management Institute, lauded the proposal but many industry groups and western lawmakers are expressing their opposition.

The proposed rule provides CWA protection for all river tributaries, even those that are seasonally dry, requiring any activity that would fill the water bodies or discharge pollution to get a permit. The EPA has estimated that 60 percent of the streams in the U.S. would fall within this "intermittent" category flowing only seasonally or after a rain. The rule also includes wetlands that are adjacent to any waters regulated by the CWA; truly geographically isolated wetlands would still require case-by-case consideration, leaving areas like the prairie potholes still in question.

"These other upstream waters must be shown to have a significant nexus to downstream water quality," said EPA Administrator Gina McCarthy. "If you're a pond or a wetland, it's not enough to show that the connections simply exist; you have to show that that pond or wetland ? either alone or in combination with similarly situated waters in the region ? significantly affects the alteration of physical, chemical or biological integrity of other jurisdictional waters that the Clean Water Act was intended to protect."

Conservation organizations have been working since the Supreme Court rulings in 2001 and 2006 to add intermittent and isolated wetlands back under the jurisdiction of the CWA. The Supreme Court's actions resulted in the loss of protection for at least 20 million acres of wetlands. The groups argue that as a result, there was a 140 percent increase in the rate of wetland loss during the 2004-2009 period.

"In a measured response to the Supreme Court's decisions, the proposed rule will provide the clear direction necessary to conserve the nation's wetlands and streams," said WMI President Steve Williams. "In addition, it provides practical and necessary exclusions for farming and forestry activities. The rule recognizes the essential value of clean water for our nation's citizens and our fish and wildlife resources."

However industry groups and many western lawmakers are already expressing their frustration at the proposed rule. In a letter to the EPA and Corps, the co-chairs of the Western Governor's Association, Gov. John Hickenlooper from Colorado and Gov. Brian Sandoval from Nevada, wrote that the states were not sufficiently consulted in the crafting of the rule. Many states in the southwest will find a significant portion of their states now falling under the new "intermittent" definition ? according to a 2008 EPA report, 94 percent of Arizona's streams, 89 percent of Nevada's streams and 88 percent of New Mexico's streams do not flow year round. Farmers, ranchers, homebuilders and energy companies also believe the proposed rule will severely undermine their ability to function.

"The EPA proposal poses a serious threat to farmers, ranchers and other landowners. Under EPA's proposed new rule, waters ? even ditches ? are regulated even if they are miles from the nearest 'navigable' waters. Indeed, so-called 'waters' are regulated even if they aren't wet most of the time," stated American Farm Bureau Federation President Bob Stallman. "This is not just about the paperwork of getting a permit to farm, or even about having farming practices regulated. The fact is there is no legal right to a Clean Water Act permit ? if farming or ranching activities need a permit, EPA or the Army Corps of Engineers can deny that permit. That's why Clean Water Act jurisdiction over farmlands amounts to nothing less than federal veto power over a farmer's ability to farm."

The EPA and Corps counter that they have built in certainty and predictability for agriculture, outlining specific exclusions and exemptions for agriculture. More than fifty established Natural Resource Conservation Service (NRCS) conservation practices are exempted if implemented within the published standards of the CWA. According to the EPA, "Any normal farming activity that does not result in a point source discharge of pollutants into waters of the U.S. still does not require a permit." However, even supporters of the proposed rule cite that the NRCS has 180 approved conservation practices and do not understand why some were included and others not. The NRCS says that the included exemptions were chosen because they are more likely to be implemented in riparian and wetland areas and that practices typically implemented in upland areas were not included because they fall under existing exemptions.

The Administration has very specific requests for input within the proposed rule. Comments will be accepted for 90 days following publication within the Federal Register. (jas)