WASHINGTON, March 25, 2014 — The EPA and the Army Corps of Engineers today released a proposed rule to clarify protection under the Clean Water Act (CWA) for streams and wetlands that form the foundation of the nation’s water resources. The rule would cover most seasonal and rain-dependent streams, while preserving CWA exemptions and exclusions for agriculture.
The proposal, which applies to all Clean Water Act programs, 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, the EPA and the Army Corps said in a news release.
“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” EPA Administrator Gina McCarthy said in the release. “Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.”
The proposed rule drew immediate fire from the National Cattlemen’s Beef Association, which called the plan a “vast overreach” by the EPA and the Obama administration.
“Under this expansion, essentially all waters in the country would be subject to regulation by the EPA and the Corps, regardless of size or continuity of flow,” the group said in a statement. NCBA President Bob McCan said ranchers will have to obtain “costly and burdensome” permits to take care of everyday chores, stifling economic growth without a corresponding environmental benefit.
In addition to preserving the Clean Water Act agriculture exemptions, the EPA and the Army Corps said they have coordinated with USDA to develop an “interpretive rule” to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to dredged or fill permitting requirements set out in Section 404 of the CWA.
The agencies also pledged to work together to implement these new exemptions and periodically 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 EPA and Army Corps said.
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, the agencies said. . The agencies are also launching an outreach effort during that period, holding discussions around the country before issuing a final rule.
“The health of rivers, lakes, bays, and coastal waters depend on the streams and wetlands where they begin,” the agencies said in explaining the thinking behind the proposal. They said about 60 percent of stream miles in the U.S. flow only seasonally or after rain, but still have a “considerable impact” on downstream waters.
“And approximately 117 million people – one in three Americans – get drinking water from public systems that rely in part on these streams,” the agencies said, adding: “These are important waterways for which EPA and the Army Corps is clarifying protection.”
Determining Clean Water Act protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006, prompting requests for clarification from lawmakers, industry, agriculture and environmental groups, according to the release.
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