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New Rule Proposes Greater Protections for Streams and Wetlands under the Clean Water Act

Last March, the Environmental Protection Agency (EPA) and the U.S. Army Corps. of Engineers jointly released a proposed rule that would give the federal government regulatory authority over millions of acres of wetlands and about 2 million miles of streams. The proposal, which is subject to a 90-day comment period before the government can consider putting final regulations in place, would lead to stricter pollution controls on some of these areas and aims to reduce confusion about the Clean Water Act’s protection.

Under the Clean Water Act, all waters with a “significant nexus” to “navigable waters” are protected. However, the term, “significant nexus” has remained open to judicial interpretation and considerable controversy, especially following the Supreme Court decisions of SWANCC v. U.S. Army Corps. of Engineers (2001) and Rapanos v. U.S. (2006). Thus, the question of which isolated streams and wetlands qualify for protection under the Act has been in dispute for over a decade.

The proposed rule seeks to clarify the types of waters that are protected under the Clean Water Act, which include most seasonal and rain-dependent streams and wetlands near rivers and streams. Protection for other types of waters that may have more uncertain connections with downstream water will be evaluated through a case-specific analysis of whether the connection is or is not significant. However, the rule does not protect any new types of waters, broaden coverage of the Act, regulate groundwater, or expand jurisdiction over ditches.

In addition, the proposed rule preserves the Clean Water Act exemptions and exclusions for agriculture. The EPA and the Army Corps. have coordinated with the U.S. Department of Agriculture 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.

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Charles Lee
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