The Clean Water Act: History, Controversy, and Impacts to South Carolina — Part 2 of 3

The EPA is proposing to change a key term in the Clean Water Act: “Waters of the United States” (WOTUS), which outlines water bodies that qualify for federal protection. Despite the fundamental need for clean water, the new definition of WOTUS would narrow the scope of federally protected waters. 

In this 3-part blog series, we will explore:

1. How the proposed rollbacks threaten the Upstate and our drinking water,
   Read Part 1 Here
2. The history of the Clean Water Act and details on the proposed rollbacks, and
3. The controversy surrounding agriculture and developers.

HOW TO GET INVOLVED

The cuts to the Clean Water Act will have lasting impacts to our natural resources and communities, and we need your help! The EPA is accepting comments on the proposed rule until April 14th, and every comment will make a difference. You can submit comments through ProtectSouthernWater.org.  

History of the Clean Water Act

In the first part of this blog series, we looked at how the proposed changes directly threaten Upstate South Carolina. In Part 2, we will dive into the history of Clean Water Act (CWA) protections to provide clarity on federal jurisdiction, as well as the details on the proposed rollbacks. 

Since it was passed in 1972, the CWA has been a crucial environmental safeguard used by state and local governments to protect clean water needed for healthy communities. The Clean Water Rule, known as the WOTUS (or Waters of the U.S.) rule, was published in 2015 to re-define waters that qualify for federal protection under the CWA. Without these protections, polluters could discharge directly into these waterways without public notice. The revised WOTUS definition currently proposed by the EPA would replace the 2015 Clean Water Rule.

The WOTUS definition under the 2015 Clean Water Rule determined when:

• Direct discharging into waterways requires permits and public notices
• Wetland dredging and filling requires permits
• Agencies and environmental groups can assert claims of permit violations or penalties for spills and response

Activities exempt from federal jurisdiction under the 2015 Clean Water Rule:

• Farming practices like drainage ditch maintenance, agricultural storm water discharges, and construction of farm or stock ponds
• Irrigation ditches, including most farm and roadside ditches, seasonally-flowing and rain-dependent ditches that are not tributaries or dug in natural tributaries, and that do not drain wetlands
• Prior converted cropland (wetlands which were drained, altered, and cropped for agriculture)
  • This exclusion does not apply if the cropland has been abandoned for five years and the land has reverted to wetlands
• Puddles

Details of the Proposed Rollbacks

The EPA’s proposed definition of WOTUS would include:

• Traditional navigable waters (TNW): large rivers, lakes, tidal waters, and territorial seas 
• Wetlands adjacent to (i.e. directly touching) TNW “in a typical year”
• Certain tributaries: rivers and streams that flow directly to TNW “in a typical year”
• Certain ditches: artificial channels used to convey water when they are considered TNW, or are subject to the ebb and flow of the tide
• Certain lakes and ponds: jurisdictional where they are TNW, or where they contribute perennial/ intermittent flow to TNW
• Impoundments of TNW

The following would no longer receive protection:

• Ephemeral water bodies that only contain water in response to rainfall or snowmelt
• Creeks and streams that do not directly flow into TNW 
• Wetlands that do not have a direct surface water connection to TNW
• Groundwater
• Interstate waters that are not TNW
• Stormwater control features constructed in uplands to convey, treat, or store runoff
• Wastewater recycling structures (detention, retention, infiltration and groundwater recharge ponds)
• Waste treatment systems (defined for the first time in the proposed rule)

What This Means for the Waters of the United States

The EPA’s proposed changes to the definition of WOTUS under the Clean Water Act will undoubtedly impact our tributary and wetland systems, and will put our communities at risk when we no longer have the valuable ecological services those systems provide. You can act now to ensure the protection of our water resources by submitting comments on the proposed rule to the EPA through their Federal eRulemaking Portal or through the Southern Environmental Law Center’s action center.

Megan Chase is the Clean Water Advocate at Upstate Forever and can be reached at mchase@upstateforever.org.