Posted September 26, 2013
A proposed rule intended to clarify which waters and
wetlands are protected under the Clean Water Act (CWA) was sent to the White
House for interagency review on Sept. 17, according to an EPA announcement
available here.
The Environmental Protection Agency (EPA) and the Army
Corps of Engineers proposed rule would clarify which waters are subject to CWA
jurisdiction and would provide greater certainty about which activities require
CWA permits.
Recent 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), have created uncertainty about the CWA’s protection of certain streams
and wetlands.
According to an article by the National Law Review,
available here,
this rulemaking has the potential to expand the federal government’s oversight
of activities based on possible impacts to aquatic resources. The proposed rule “could have significant
impacts on entities engaged in infrastructure or other land development
activities, such as upstream or midstream oil and gas development, highway
projects and real estate developers.”
The proposed rule will be based on a study, recently
released by the EPA, on the connectivity of smaller streams and wetlands to
larger, downstream waters, according to a Bloomberg BNA article available here. The study is available here. The study was release for public comment and
the EPA has asked the Science Advisory Board to conduct a peer review of the
study.
The “rule would not propose changes to existing
permitting exemptions and exclusions, including those that apply to the
agricultural sector” according to Nancy Stoner, EPA acting assistant for water
and Lek Kadeli, EPA acting assistant administrator for research and
development. The rule would exempt
agricultural stormwater runoff, normal silvicultural activities, and irrigation
ditches, among other waters from National Pollutant Discharge Elimination
System (NPDES) permitting requirements under Section 402 of the Clean Water
Act. In addition waste treatment ponds
and wetlands filled prior to December 1985 for use as cropland would remain
exempt.
The proposed rule would, instead, “clarify that
artificial ornamental ponds, artificially irrigated areas, areas artificially
flooded for rice growing, pits excavated for land fill, and others would be
excluded” from CWA jurisdiction.
Don Parrish, senior director for regulatory relations
with the American Farm Bureau Federation said, “I am sure the proposal will be
controversial because it will propose to regulate features that [have] little
or no similarities to streams.”
Environmental groups, including the Sierra Club, American
Rivers, Natural Resources Defense Council, and Earthjustice were pleased by the
proposed rule and said in separate statements that the “scientific findings
underscore the importance of linking protection of small streams and wetlands
to clean water, fish and wildlife, and flood control.”
