Posted March 26, 2014
Yesterday, the U.S. Environmental Protection Agency and the Army Corps of Engineers announced a joint proposed rule clarifying “waters of the United States” under the Clean Water Act, according to a Bloomberg BNA article available here. The proposed rule is available here.
The purpose of the proposed rule is to reduce the confusion and complexity about where the Clean Water Act (CWA) applies following U.S. Supreme Court decisions, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) and Rapanos v. United States, 547 U.S. 715 (2006).
Under the proposed rule, all natural and artificial tributaries and wetlands that are “adjacent to or near larger downstream waters would” be protected under the CWA. The rule would also allow the EPA and the Corps to seek comment on a case-by-case basis “on whether the aggregate effect of geographically isolated wetlands and other waters that ‘significantly’ affect the physical, biological and chemical integrity of federally protected downstream waters are jurisdictional.”
The EPA and the Corp also included an interpretive rule, effective immediately, which expands exemptions for agriculture. Fifty-three conservation practices identified by USDA’s Natural Resources Conservation Service to “protect or improve water quality” will not be subject to dredge-and-fill permits under Section 404 of the CWA.
Gina McCarthy, EPA administrator said, “It (the rule) does not expand the Clean Water Act. I repeat it does not protect any new types of water that has not been historically covered under the Clean Water Act. We know how vital water is to America’s farmers and ranchers.” AgProfessional reported on the story here.
The comment period for the proposed rule is open for 90 days from publication in the Federal Register.
For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.
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