By Amena H. Saiyid
Sept. 17 --A proposed rule sent to the White House for interagency review
Sept. 17 aims to clarify which waters and wetlands are protected under the Clean
The rule from the Environmental Protection Agency and the Army
Corps of Engineers would provide greater clarity about which waters are subject
to Clean Water Act jurisdiction and greater certainty about which activities
require Clean Water Act permits, senior EPA officials wrote in a blog post.
For instance, the rulemaking would indicate when dredge-and-fill activities
as well as discharges of pollutants would be subject to Clean Water Act
“The proposed joint rule will provide greater consistency,
certainty, and predictability nationwide by providing clarity for determining
where the Clean Water Act applies and where it does not,” Nancy Stoner, EPA
acting assistant administrator for water, and Lek Kadeli, EPA acting assistant
administrator for research and development, said in the blog.
At the Environmental Council of the States'
annual conference, also Sept. 17, Stoner said the proposed rule was an effort to
clarify jurisdictional issues as a result of recent U.S. Supreme Court
Also at the conference, Stoner told participants during the
ECOS Water and Ecosystems Committee meeting that the EPA Science Advisory Board
was releasing for public comment a study
on the connectivity of smaller streams and wetlands to larger, downstream
waters. This study, upon being finalized, would provide the scientific basis for
the proposed rule on Clean Water Act jurisdiction, she said.
The EPA had
asked the advisory board earlier this year to conduct a peer review of the
connectivity study. The board recently selected a panel that will conduct the
The EPA officials said the rulemaking on jurisdiction was
necessary to reduce costs and minimize delays in the permitting process and
protect waters that are vital to public health, the environment and economy.
Both Kadeli and Stoner, however, clarified that
the rule would not propose changes to existing permitting exemptions and
exclusions, including those that apply to the agricultural sector.
Specifically, EPA said the rule would exempt agricultural stormwater runoff,
normal silvicultural activities, and irrigation ditches, among other waters from
National Pollutant Discharge Elimination System permitting requirements under
Section 402 of the Clean Water Act. Also excluded from jurisdiction would be
waste treatment ponds and wetlands that were filled prior to December 1985 for
use as croplands.
According to the EPA blog, the proposed rule sent to
OMB would clarify that artificial ornamental ponds, artificially irrigated
areas, areas artificially flooded for rice growing, pits excavated for land
fill, among others would be excluded from Clean Water Act jurisdiction.
Also present at the ECOS meeting was Alexandra Dunn, general counsel and
executive director of the Association of Clean Water Administrators, who told
Bloomberg BNA after Stoner's announcement that EPA was planning to withdraw the
joint EPA-corps guidance that has been under review at the OMB since February
In late December 2012, the two agencies said they would propose a
rule to clarify “considerable debate and uncertainty” over attempts to interpret
two U.S. Supreme Court decisions on what constitutes waters of the United States
(Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers, 531 U.S. 159, 51 ERC 1838 (2001); Rapanos v. United
States, 547 U.S. 715, 62 ERC 1481 (2006)).
EPA's draft report synthesizes peer-reviewed scientific
literature pertaining to biological, chemical, and hydrologic connectivity of
waters, and the effects that small streams and wetlands have on larger
downstream waters such as rivers, lakes, estuaries, and oceans.
report concluded that streams, regardless of their size or how frequently they
flow, are connected to and have important effects on downstream waters.
Moreover, wetlands in floodplains of streams and rivers and riparian areas are
integrated with streams and rivers, and strongly influence downstream waters by
affecting the flow of water, trapping and reducing nonpoint source pollution,
and exchanging biological species. However, the report found there was
insufficient information to generalize about wetlands and open waters located
outside of riparian areas and floodplains and their connectivity to downstream
Since 2012, the EPA connectivity study has been causing concern
among congressional Republicans, home developers, and farming groups. The groups
and the lawmakers see the study as providing the scientific basis for
establishing a significant nexus between ephemeral, perennial, and intermittent
waters and wetlands and larger navigable waters.
Don Parrish, senior director for regulatory relations
with the American Farm Bureau Federation, said the federation wanted the
guidance withdrawn and a “serious rulemaking proposal” put forward. Still,
Parrish said, “I am sure the proposal will be controversial because it will
propose to regulate features that [have] little or no similarities to streams.
If they broaden jurisdiction, it will erect barriers to economic growth, and the
last thing our economy needs is more regulations.”
On EPA's decision to
withdraw its guidance, Sen. David Vitter (R-La.), the ranking Republican on the
Senate Environment and Public Works Committee, said, “EPA's announcement today
doesn't solve anything, but merely takes another road to potentially expand its
own jurisdiction through the Clean Water Act.”
including the Sierra Club, American Rivers, Natural Resources Defense Council,
and Earthjustice lauded the rulemaking action as well as the draft report's
release. They said in separate statements that the scientific findings
underscore the importance of linking protection of small streams and wetlands to
clean water, fish and wildlife, and flood control.
Jon Devine, NRDC
senior water attorney, said he was pleased that the EPA was moving forward with
the rulemaking. “Separately,” Devine, said, “we are disappointed that the
administration has failed to implement the guidelines that would have improved
protections for these vulnerable waters but that stalled at the White House more
than a year ago. We need these safeguards now.”
the reporter on this story: Amena H. Saiyid at firstname.lastname@example.org
the editor responsible for this story: John Sullivan at email@example.com
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