By Melanie Condon
The U.S. Environmental Protection Agency (EPA) along with the U.S. Army Corps of Engineers released a final rule last week clarifying the waterways in the United States that are subject to the Clean Water Act permitting requirements.
The Clean Water Rule: Definition of Waters of the U.S. was originally written in 2011 as a draft EPA guidance document, but was crafted into a proposed rule in March 2014. The impetus for the 2011 clarification on how to define “waters of the U.S.” came as a result of two U.S. Supreme Court decisions, in 2001 and 2006, that created confusion regarding which of the nation’s waterways were under federal protection from pollution.
According to EPA, the final rule applies to waters with a “direct and significant” connection to larger downstream bodies of water that are already protected. Ditches and other unique water bodies would also be covered under the final rule if they meet the definition of a tributary, which is defined under the rule as water that contributes flow, either directly or through another water, to a recognized protected water.
In releasing the final rule, EPA Administrator Gina McCarthy said decisions on which ditches will be covered will have to be made on a case-by-case basis. The rule includes measurable limits on how “adjacent” waters are defined.
Additionally, the regulation does not create new permitting requirements for agriculture and adds new exemptions for artificial lakes and ponds. Water treatment operations in Municipal Separate Storm Sewer Systems are not changed under the final rule, which will go into effect 60 days after it is published in the Federal Register.
The rule, which garnered more than 1 million public comments during the proposal phase, was met with both support and opposition. The U.S. House of Representatives passed legislation, 261-155, on May 12 that would order EPA to withdraw the rule and craft a new one. The U.S. Senate is expected to discuss similar legislation this summer.
If you are interested in learning more about how EPA consults with state and local entities during the rule-making process, join us on at 1 p.m. (ET) Friday for a free NCSL webinar entitled: EPA Regulations: What Are They and What Do They Mean for Your State?
Jack Bowles, director of State and Local Relations at EPA will be discussing a number of EPA regulations that affect state governments, such as this Clean Water Rule, and the federalism consultation process. Register for free today!
Melanie Condon is policy specialist for the Natural Resources and Infrastructure Committee in the Washington, D.C., office.
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