A new federal regulation that could expand clean water protections to more streams and tributaries was halted by a federal court last week, sinking the rule’s implementation while the lawsuit proceeds.
The decision was met with applause from businesses, as well as state and national representatives from Georgia. And it has strong implications in Hall County, where rural farmers and large water resources are important cogs in the economic life of the region.
“I think it’s a welcome interruption,” Georgia Agriculture Commissioner Gary Black said. “I also hope it’s the beginning of the end.”
Black said the potential economic toll on private property owners, farmers and small businesses is the greatest federal overreach he’s ever witnessed.
But local environmental groups and activists said the new regulation is being misconstrued and its implementation should have carried on while the case played out.
Jason Ulseth, the lead river protection advocate and spokesman for the Chattahoochee Riverkeeper, said the new regulation would help provide clarity for all, and potentially close “loopholes.”
“We’ve run into certain cases where a potential discharger is trying to claim an exemption to the Clean Water Act and is trying to hide in this cloud of misconception and confusion,” he said.
For example, Ulseth said a Hall County poultry plant discharges into a tributary along a railroad easement and flows into Flat Creek downstream. Flat Creek, one of the most heavily polluted waterways in Hall County, then flows into Lake Lanier.
Ulseth said the plant is currently permitted to discharge in this manner, but that he believes it makes no sense to distinguish between Flat Creek and its tributaries.
Mike Giles, president of the Georgia Poultry Federation based in Gainesville, said he’s confused by claims that the court’s decision will lead to further pollution of local streams, rivers and lakes, and that unpermitted discharges will remain illegal.
“The federal rule in dispute does not address the regulation of wastewater discharges into streams or lakes,” Giles added. “The rule relates to federal jurisdiction over certain disputed ditches and other wet weather drainage areas, not the discharges into streams or lakes that are subject to federal and state permitting authority regardless of the new rule.”
Horace Gee, Gainesville’s environmental services administrator, said at the time the new regulations were issued in late May that he believes they are “a good compromise everyone can live with.”
The “Waters of the United States” rule, issued by the Environmental Protection Agency and Army Corps of Engineers, seeks to clarify which smaller waterways fall under federal protection after two Supreme Court rulings had left the reach of the Clean Water Act uncertain.
According to the EPA, the waters affected would be only those with a “direct and significant” connection to larger bodies of water downstream that are already protected. It says the aim is to protect the waters from pollution and development and to safeguard drinking water.
Specifically, the new regulations say that a tributary must show physical features of flowing water — a bed, bank and high water mark — to warrant protection.
The U.S. Court of Appeals for the Sixth Circuit ruled in favor of Georgia and 17 other states in granting a nationwide stay of the EPA’s “Waters of the United States” rule.
The states involved in the lawsuit allege that the rule extends regulatory reach so far as to include roadside ditches and streams that are sometimes dry, or perhaps a farm pond and even a homeowner’s backyard.
The court’s ruling stated that there is no “indication that the integrity of the nation’s waters will suffer imminent injury if the new scheme is not immediately implemented and enforced.”
However, the court did acknowledge the need for some kind of new rule given past confusion.
“Yet, the sheer breadth of the ripple effects caused by the rule’s definitional changes counsels strongly in favor of maintaining the status quo for the time being,” the court states in its decision. “A stay temporarily silences the whirlwind of confusion that springs from uncertainty about the requirements of the new rule and whether they will survive legal testing.”
Sen. Johnny Isakson, R-Georgia, and Sen. David Perdue, R-Georgia, have co-sponsored the Federal Water Quality Protection Act, which would direct the EPA to develop a different rule and consult with states, local governments and small businesses.
Black said the new rule is both bad policy and bad philosophy.
“I think the state and the nation would all be well served if regulatory agencies just kind of stopped and did what they are already charged with doing … without throwing another log on the fire,” he added. “I think it’s time we turn the faucet off on this flow of regulation coming from Washington.”
Environmentalists have said the new rule does not explicitly designate new waterways for protection or any new permitting requirements. It’s simply a matter of figuring out which additional waterways should be extended protections.
“The real intent of this rule is to provide for clarification,” Ulseth said. “There are a lot of misconceptions out there about this rule.”
The rule will help provide clear guidelines for developers and farmers, he added, and the delay in implementation could set back improvements in water quality for years.
“It should have been done years ago,” Ulseth said. “Unfortunately, this has been a very slow process. Now, the brakes have been put on the entire system.”