SMYRNA, Del. — When is a ditch just a ditch? And when is a plot of woodland without a stitch of visible water actually a “water of the U.S.”?
For federal officials working on regulations to clarify what the 42-year-old Clean Water Act really means, the debate is more than a simple “is-the-ditch-half-full-or-half-empty” exercise.
It’s become a flash point in the debate between environmental regulators and property owners, with farmers particularly hoping to persuade the federal government to pull the so-called “Waters of the U.S.” rule.
The Clean Water Act requires permits for developing waters under its jurisdiction, or discharging into them. That makes the rule — which regulators hope to complete by next spring — of vital importance to farmers and to landowners in general.
“The more we look at the rule the more it really concerns us,” said Charles Shinn, director of government and community affairs at the Florida Farm Bureau Federation.
Don Parrish, senior director of regulatory affairs for the American Farm Bureau Federation, said: “This is a very expansive rule.”
But in the eyes of Mark Biddle, who helps oversee wetlands management at the Delaware Department of Natural Resources and Environmental Control, the confusion — and the conflict — comes when the public tries to get its head around science that to him is pretty clear-cut.
On a warm day last month, Biddle poked around a wooded area in the northern part of his tiny state. As he walked over dry and sometimes crunchy leaves, he explained that the slight depression in the wooded land was known as a “Delmarva bay.” In ancient lore, it’s known as a “whale wallow”; legend has it that primeval whales, stranded on high ground when waters receded, thrashed about enough to depress the earth.
“A landowner comes in here, he’ll say, ‘It’s not a wetland — it’s not wet!’ ” Biddle said.
How to treat these Delmarva bays is partly the issue in the mid-Atlantic region. Other regions have their own non-wet wetlands that could come under the rule’s jurisdiction.
Walking through the Delmarva bay, Biddle pointed to telltale signs of this not-so-obvious wetland: the base of trees, covered with green moss that stops at what was the water line; the leaves, dry on top yet soft and damp underneath; a northern green frog.
“It fills pretty much every spring,” he said of the bay. There are some species — the marbled salamander for one — that couldn’t survive without the wetland.
The water in this particular Delmarva bay drains toward the huge Delaware Bay a couple of miles away.
The “Waters of the U.S.” rule was proposed by the Environmental Protection Agency and the U.S. Army Corps of Engineers. It is intended to clarify which waters come under the powers of the 1972 Clean Water Act and which ones don’t.
Rivers, lakes and year-round wetlands are obvious; other waters have long vexed regulators, and two U.S. Supreme Court cases in the 2000s muddled things further.
The proposed rule by the EPA and Corps of Engineers is intended to take the standards laid out by the high court and, as they say, clear the waters.
If that was the intent, it didn’t work.
Shinn, of the Florida Farm Bureau, said that although the rule is designed to clarify standards set by the Supreme Court, it still would default to a case-by-case determination as to whether a water or wetlands formation is isolated — therefore not covered — or whether it has a significant nexus to the nearby lakes or rivers that clearly are covered.
“Once you open up these cases, where does it stop?” Shinn said. “They fall back on whether something has the potential to impact downstream water. You can say that for any drop of water that lands anywhere. Does it have the potential? Well, yeah.”
Shinn said the EPA has taken what “was black and white and added in a whole lot of gray.”
