On March 25, 2014, the US Environmental Protection Agency (EPA) and the US Army Corps of Engineers (Army Corps) released their long-awaited proposed rule to clarify regulation under the Clean Water Act for streams and wetlands. According to EPA, “Determining Clean Water Act protection for streams and wetlands because 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.”
The proposed definitions of waters will apply to all Clean Water Act programs. It does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction. Specially, the proposed rule clarifies that under the Clean Water Act:
- 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.
The proposed rule will be open for public comments for 90 days. A copy of the rule and instructions for commenting are available on EPA’s homepage.