EPA and Army Corps Announce Water Protection Rule
April 4, 2014

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers jointly released a proposed new rule to clarify protection and enforcement of the Clean Water Act (CWA) for streams and wetlands. Once the proposed rule is published in the Federal Registry, comments will be accepted for 90 days.

The EPA and Army Corps claim that determining CWA protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006, and nearly every business and the general public, including farmers, have wanted clarity of how and to what waters the CWA pertains.

The jointly proposed rule's definitions of protected waters will apply to all CWA programs. Agriculture groups have expressed concern that the proposed rule could overstep the bounds of the CWA.

Gina McCarthy, EPA administrator, said, "The rule does not expand the CWA. I repeat, it does not protect any new types of water that has not been historically covered under the CWA. This rule will not regulate groundwater or tile drainage systems. It will not increase regulations of ditches whether they are irrigation or drainage. It can be clear that this rule keeps intact existing CWA exemptions for agricultural activities."

The EPA and the Army Corps coordinated with the U.S. Department of Agriculture to develop an interpretive rule to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements.

It would appear, however, that seasonal streams are one area of concern between the new rule and what agriculture has asked to be exempt from enforcement. The announcement of the rule pointed out that "about 60 percent of stream miles in the United States only flow seasonally or after rain, but have a considerable impact on downstream waters. These are important waterways for which EPA and the Army Corps is clarifying protection."

More information is available at www.epa.gov/uswaters.