On March 25, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) jointly released a proposed rule to clarify Clean Water Act jurisdiction. The purpose of the proposed rule is to resolve much of the confusion and uncertainty created by the SWANCC and Carabell/Rapanos Supreme Court decisions in 2001 and 2006 respectively. The proposed rule is available on a new page on EPA’s website which also contains a great deal of useful information about the purpose and benefits of the proposed rule. It will be published in the Federal Register shortly and there will be a 90 day comment period that will start the day it is published. Following the public comment period the agencies will review what is likely to be hundreds of thousands of comments. A final rule is not likely until sometime in 2015.
The proposed rule is consistent with the approach to jurisdiction outlined in the proposed guidance from a couple years ago but with much more specificity. In very general terms under the proposed rule, waters of the U.S. include:
- All tributaries where there is an identifiable bed and bank and ordinary high water mark, and
- All wetlands and other waters (such as oxbows, lakes and other natural aquatic features) located in floodplains and riparian areas.
However, wetlands and other waters beyond the floodplain/riparian boundary must, in most cases, be evaluated on a case by case basis to determine whether or not they have a ‘significant nexus’ with navigable waters. The proposed rule would allow for the Army Corps/EPA to assert jurisdiction over a group of similarly situated waters with similar functions, so an argument may be made at some future date for prairie potholes or playa lakes or other high value wetlands to be identified as a class of waters that are jurisdictional. However, it is not clear that the scientific basis for linking these wetlands to the health of downstream navigable waters (as required in the proposed rule) currently exists.
In sum, millions of acres of wetlands – all those that are not adjacent or neighboring to a stream or other water body – are likely to remain unprotected by the Clean Water Act. This includes the majority of prairie potholes, playa lakes, vernal pools, Carolina bays, Nebraska’s rainwater basin, desert springs, bogs, fens and many more.
As disappointing as this is for people concerned about the protection and conservation of wetlands, it is not unexpected. EPA and the Army Corps are trying to clarify jurisdiction after two Supreme Court decisions drastically reduced the scope of protections under the Clean Water Act for isolated wetlands and created considerable confusion about the status of other waters. The proposed rule clarifies that jurisdiction still remains for river and stream systems as well as wetlands and other waterbodies located in adjacent floodplains and riparian areas, but requires a significant nexus test for other waters.
The Association of State Wetland Managers was one of many organizations who have been formally on record in support of rulemaking to clarify the two Supreme Court decisions. Others include the Association of Clean Water Administrators, Association of State Floodplain Managers, American Farm Bureau Federation, National Association of Manufacturers, Ducks Unlimited, National Wildlife Federation and many more here.
In addition to publishing the proposed rule on Clean Water Act jurisdiction, EPA and the Army Corps also published an interpretive rule “regarding the Applicability of the Exemption from Permitting under Section 404(f)(1)(A) of the Clean Water Act to Certain Agricultural Conservation Practices” that can be found here. It goes into effect immediately. It provides clarification of when certain practices fall under the agricultural exemption. There will also be a public comment period for this interpretive rule.
The interpretive rule signals very clearly that EPA and the Army Corps have gone to great lengths to address the concerns expressed by members of the agricultural community.
Given the constraints the Supreme Court has placed on what the agencies could do to reassert jurisdiction over waters regulated prior to 2001, the agencies have worked hard to bring clarity and certainty to Clean Water Act jurisdiction. The rule provides greater clarity about some areas that are regulated such as rivers and streams and those that are not, including groundwater, prior converted croplands, upland ditches and wastewater treatment facilities. It specifically asks for comments and recommendations in a number of areas—because that is the purpose of a proposed rule. It is a proposal that will benefit from thoughtful comment by the American public.
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