EPA, Army Corps Releases Proposed Rule Under CWA for Streams, Wetlands

March 25, 2014 09:15 AM
 

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Agencies say proposed rule does not cover waters that haven’t been subject to Clean Water Act previously


NOTE: This column is copyrighted material, therefore reproduction or retransmission is prohibited under U.S. copyright laws.


Clarification of the protections for streams and wetlands under the Clean Water Act is the goal of a proposed rule released jointly today by the Environmental Protection Agency (EPA) and US Army Corps of Engineers.

In addition, the agencies announced they will embark on a "robust outreach effort over the next 90 days, holding discussions around the country and gathering input needed to shape a final rule."

Of note, the proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture, the agencies said. "Additionally, EPA and the Army Corps have coordinated with the U.S. Department of Agriculture (USDA) to develop an interpretive rule to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements.

Further, the agencies will work together to implement these new exemptions and periodically review, and update USDA’s Natural Resources Conservation Service conservation practice standards and activities that would qualify under the exemption. Any agriculture activity that does not result in the discharge of a pollutant to waters of the U.S. still does not require a permit.

The proposed definitions of waters will apply to all Clean Water Act programs, the agencies said, but it does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.

"Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations," EPA Administrator Gina McCarthy said in a statement announcing the proposed rule. About 60 percent of stream miles in the US only flow seasonally or after rain, but have a considerable impact on the downstream waters. And approximately 117 million people – one in three Americans – get drinking water from public systems that rely in part on these streams, according to the agencies.

Specifically, the proposed rule clarifies that under the Clean Water Act and based on the science:

  • Most seasonal and rain dependent streams are protected.

  • Wetlands near rivers and streams are protected.

  • Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.

Determining Clean Water Act protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006. For nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public asked for a rulemaking to provide clarity.

The proposed rule will be open for public comment for 90 days from publication in the Federal Register. The interpretive rule for agricultural activities is effective immediately.


Comments: So can we finally put this "issue" to rest? That depends on who is commenting.

The rule would not increase regulation of ditches, cover tile drains or affect areas previously exempt from regulation, including irrigation areas that would revert to upland if the irrigation stopped. Lakes or ponds created by excavating or diking dry land and used for purposes such as growing rice and watering livestock also would remain exempt. EPA and the Army Corps coordinated with USDA on an interpretive rule exempting 53 specific conservation practices from Section 404 permitting requirements for dredging and filling. The agencies would periodically review conservation practices that qualify under the exemption. The proposed rule will be open for public comment for 90 days. The interpretive rule is effective immediately. EPA Administrator Gina McCarthy stressed that the rule would not broaden the reach of the law. "The proposed rule does protect any types of water that historically have not been covered under the Clean Water Act," she said. "Our hope is that by doing this outreach to various stakeholders, including the agricultural community, we can familiarize them with all the work we’ve done on this rule," McCarthy added. "If the Farm Bureau gets a chance to look at this rule, I think they’ll see how far we’ve come."

Support and opposition. Chandler Goule, vice president for the National Farmers Union (NFU), was pleased that the rule clarified Clean Water Act jurisdiction, maintained existing agricultural exemptions and added new exemptions. But the American Farm Bureau Federation was not pleased. Don Parrish, federal regulatory relations director for the Farm Bureau, maintained the group's opposition to the proposed rule, saying it would expand federal regulatory overreach over the nation's waters. Parrish questioned the exemptions that the rule immediately grants for conservation practices, saying they already were exempt from permitting requirements under the Clean Water Act.


 

NOTE: This column is copyrighted material, therefore reproduction or retransmission is prohibited under U.S. copyright laws.


 


 

 

 

 

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