The Clean Water Act provides a mandate for both the EPA and the Army Corps of Engineers to adopt and enforce regulations that “restore and maintain the chemical, physical, and biological integrity of the Nation’s Water’s”. To be subject to this regulatory power, the specific area must fall under the definition of “Water’s of the United States”. The CWA delegates the defining of such waters to the EPA and Corps as long as they can prove through science and technical expertise that the waters under review do in fact significantly affect the chemical, physical, and biological integrity of an already established “Water of the United States”. Following Supreme Court decisions in 2001 and 2006, determining Clean Water Act protection for streams and wetlands became confusing and complex. The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) are publishing for public comment a proposed rule defining the scope of waters protected under the Clean Water Act (CWA).
The proposed rule specifically clarifies that under the Clean Water Act:
- Most seasonal and rain-dependent streams are protected.
- Wetlands near rivers and streams are protected.
Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant. However, to provide more certainty, the proposal requests comment on options protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.
Protection under the Clean Water Act would require a permit from the EPA or the Army Corps of Engineers to build dump or discharge in those waterways. According to the EPA, the rule intends to
- Reduce confusion about CWA protection
- Clarify types of waters covered under CWA
- Save businesses time and money
- Provide more benefits to public than costs
- Help states protect their waters.
According to the EPA, the rule does not
- Protect any new types of water (those that have not historically been covered under the CWA)
- Regulate groundwater
- Expand jurisdiction over ditches and broaden coverage of the CWA.
- Broaden the coverage of CWA
The proposed rule is supported by environmentalists, hunting and fishing organizations and some democrats, saying that it would close loopholes that allowed for pollution and contamination and result in greater protection of local waterways. Organizations such as the Sierra Club and the National Resources Defense Council have commended the EPA for providing necessary protections and clearing up legal uncertainties.
On the contrary, many trade organizations, agricultural groups and some republicans have opposed the proposed rule claiming the process of obtaining a federal permit to conduct their activities would impose an unnecessary burden on their business. Organizations such as the National Association of Home Builders and the American Farm Bureau have criticized the rule as a federal overreach, expanding its jurisdiction over U.S. waterways and subjecting farmers, home builders, ranchers and even home owners to federal oversight.