EPA Proposed Rule to Clarify Clean Water Act Jurisdiction

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.”