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.
