The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) today jointly released a proposed rule to clarify protection under the Clean Water Act (CWA) for streams and wetlands. The proposed rule will be subject to a 90-day comment period and during that time both agencies will hold discussions around the country gathering input to shape a final rule.
The proposed rule clarifies protection for streams and wetlands. All ephemeral and intermittent streams, and the wetlands that are connected or next to them, will be subject to federal oversight under the proposed rule. In addition to the specified categories in the rule, the agency is also seeking public input regarding other waters – those not fitting in rule categories.
The proposed definitions of waters will apply to all Clean Water Act programs. The EPA has stated the proposed rule 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.
“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” said EPA Administrator Gina McCarthy.
The proposed rule preserves the Clean Water Act 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 53 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 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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