EPA, Army Corps propose rule to clarify protection for U.S. streams, wetlands

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WASHINGTON, DC, April 2, 2014 -- On Tuesday, March 25, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) jointly released a proposed rule to clarify protection under the Clean Water Act (CWA) for streams and wetlands that form the foundation of the nation's water resources. The proposed rule will benefit businesses by increasing efficiency in determining coverage of the CWA. The agencies are launching a robust outreach effort over the next 90 days, holding discussions around the country and gathering input needed to shape a final rule.

Determining CWA 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. Accordingly, the proposed rule clarifies protection for streams and wetlands, and the proposed definitions of waters will apply to all CWA programs. It does not protect any new types of waters that have not historically been covered under the CWA and is consistent with the Supreme Court's more narrow reading of CWA jurisdiction.

The health of rivers, lakes, bays, and coastal waters depend on the streams and wetlands where they begin. Streams and wetlands provide many benefits to communities -- they trap floodwaters, recharge groundwater supplies, remove pollution, and provide habitat for fish and wildlife. They are also economic drivers because of their role in fishing, hunting, agriculture, recreation, energy, and manufacturing. About 60 percent of stream miles in the U.S. only flow seasonally or after rain but have a considerable impact on the downstream waters. And approximately 117 million people (one in three Americans) receive drinking water from public systems that rely in part on these streams. Specifically, the proposed rule clarifies that under the CWA 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 significant. However, to provide more certainty, the proposal requests comment on options protecting similarly-situated waters in certain geographic areas or adding to the categories of waters protected without case-specific analysis.

The proposed rule preserves the CWA exemptions and exclusions for agriculture. Additionally, EPA and the Army Corps have coordinated with the U.S. Department of Agriculture (USDA) to develop an interpretive rule to ensure that 56 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements. 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 rule is supported by the latest peer-reviewed science, including a draft scientific assessment by EPA, which presents a review and synthesis of more than 1,000 pieces of scientific literature. Further, it will not be finalized until the final version of this scientific assessment is complete. 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.

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