New Clean Water Act Definition of “Waters of the US” (US)

The U.S. Environmental Protection Agency (USEPA) and U.S. Army Corps of Engineers jointly released 26th March a proposed rule to clarify protection under the federal Clean Water Act for streams and wetlands.

My 2013 post on this is here.

The proposed definitions of waters will apply to all Clean Water Act programs. No new types of waters that have not historically been covered under the Clean Water Act will be encompassed, consistent with the US Supreme Court’s more narrow reading of Clean Water Act jurisdiction.

– Most seasonal and rain-dependent streams will continue to be protected.
– Wetlands near rivers and streams will continue to be protected.

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, 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 existing 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 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.

Further information is found here and here.

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