As we last reported in the October edition of Rock the Earth Notes, the U.S. Environmental Protection Agency (EPA) has been working on historic amendments to the regulations implementing the federal Clean Water Act (CWA). On May 27, 2015, the EPA and the U.S. Army Corps of Engineers (Corps) issued a final rule defining “Waters of the United States” (“Clean Water Rule“) that expands the agencies’ jurisdiction over “waters of the United States” as the term is used in the CWA. The change is important largely due to its broad application for all Clean Water Act programs which govern what permits are needed for certain pollution activities. For example, the Rule applies to permits for filling wetlands and discharging pollutants into surface water.

The Rule has new features that govern a new set of waters that can be regulated by the EPA and Corps. Under the Rule the following types of “waters” will be protected:

All “tributaries.” This includes including any waters that contribute flow, either directly or through another water, to downstream traditional navigable waters, interstate waters, or territorial seas.
All waters “adjacent” to traditional navigable waters, interstate waters, territorial seas, or tributaries. The proposed rule broadly defines “adjacent” to include all waters bordering, contiguous, or “neighboring” (the latter term defined as being located within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high-water mark).

While these new items are protected, the new Rule exempts certain waters from protection. This exclusion applies to certain waters that could have been protected on a case-by-case basis under the old rule. However, with the new Rule in place, the EPA and Corps no longer have jurisdiction over (among other things):

– Certain ditches with limited water flow and that contribute to other waters on a limited basis.
– Artificially irrigated areas that revert to upland should water application cease.
– Artificial, constructed lakes and ponds created in dry land such as farm and stock watering ponds, irrigation ponds, settling basins, fields flooded for rice growing, log cleaning ponds, or cooling ponds.
– Stormwater control features constructed to convey, treat or store stormwater created in dry land.

The Rule still does not regulate groundwater, an important source of drinking and agricultural water in the United States. The above listed waters and groundwater remain vulnerable to pollution.

RtE previously submitted comments on the proposed Rule, urging the EPA to further expand its protection of our nation’s waters. At this point, Rock the Earth’s comments were not adopted in the final rule and we are exploring our options regarding a potential legal challenge to the new rule.

For more information on the Rule from the EPA GO HERE.

To review more background on this issue or to stay abreast of the latest developments, see Rock the Earth’s Wetlands Project Page.