Is there a downside to redefining regulated waters?

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For years businesses, landowners, even towns and cities have been trying to figure out if waters on their land are “waters of the United States” and, therefore, subject to federal regulation under the Clean Water Act. Now with a redefinition probable, it raises the possibility for unintended negative consequences for boating in many parts of the country.

Upon taking office, President Trump ordered a review and elimination of unnecessary regulations. Included in this review is the 2015 Obama administration’s redefinition of “waters of the United States.” Good intentions notwithstanding, Obama’s actions set in motion more confusion than clarity about what’s covered. For example, whether the Clean Water Act was intended to cover such things as isolated ponds, streams that only flow after it rains, or wetlands located miles away from “navigable waters,” to note a few.

The U.S. Environmental Protection Agency and the Army Corps of Engineers have been tasked with completing the review and drafting a proposal that better defines where the Clean Water Act applies and where it doesn’t.

The result is a current proposal that the following would be federally regulated: traditional navigable waterways; impoundments of jurisdictional waterways; wetlands adjacent to jurisdictional waterways; certain ditches like those used for navigation or affected by the tides; tributaries, certain lakes and ponds.

On the other hand, streams that only flow after it rains, as well as most roadside and farm ditches would no longer be defined as “waters of the U.S.” and be exempt. And it’s these proposed exclusions that raise immediate and long-term concerns for all those worried about problems like summer algae blooms now running virtually unchecked in many of our nation’s waterways from the Great Lakes to the Gulf of Mexico, and New England to California.

Each summer, it has increasingly become “slime time” in prime boating areas. Lake Erie, for example, now annually experiences large-scale algae blooms at its western end. Who can forget when the half-million Toledo-area residents were told not to use their drinking water that comes from the lake? Indeed, the Great Lakes supply fresh water to millions of people in surrounding states.

Or, the Gulf of Mexico which at last report had a record dead zone of 8776 square miles – that would cover New Jersey. Such areas threaten all aquatic species, disrupt fishing and are depleted of oxygen. Here’s how it happens:

Every spring, the Mississippi River funnels a rush of nutrients, notably phosphorus and nitrogen, that fuels to growth of microscopic algae called phytoplankton. When the algae die it sinks to the bottom where its decomposition gives rise to a burst of bacteria growth. In turn these microbes rapidly consume the plankton and all the oxygen dissolved is the water. Fish that don’t leave the area suffocate as do all species of plant life.

It’s no secret the green slime stems primarily from synthetic fertilizers and animal manure spread on the nation’s farm land. When snow melts or rains come, a portion of this material runs into ditches and streams that eventually can reach the Mississippi throughout America’s heartland or the Maumee River in northwest Ohio that feeds into western Lake Erie.

Dead zones and algae blooms easily impact hundreds of the nation’s lakes. A little precipitation starts a stream. Even a so-called ephemeral stream that will no longer be regulated in the proposal, can eventually feed into a larger stream that goes into a lake or river. That ends up . . . well, you get the picture.

While the actions of the Obama administration may have overreached in defining what waters should be subject to federal regulation, it’s now a concern that reversing some of those definitions, particularly as related to farm ditches and ephemeral streams, may be a slippery slope.

In this regard, the growing awareness that some major regulatory shifts in farming practices are needed in the future to fairly protect our waterways may well be hindered by the EPA and Army’s proposal to wipe out some applicable definitions. It calls for a close watch and may eventually call for some action by the boating industry.


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