May 29, 2015

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On Wednesday, the US Environmental Protection Agency and the US Army Corps of Engineers issued the final Clean Water Rule defining “waters of the United States” subject to regulation under the Clean Water Act.  The final rule comes more than a year after the agencies published a proposed rule, which resulted in approximately 400 public hearings and generated more than 1 million comments.   After Supreme Court decisions in 2001 and 2006 created significant uncertainty regarding the scope of waters regulated under the Clean Water Act, the goal of the agencies’ rulemaking efforts was to clarify which waterbodies fall within the Clean Water Act’s regulatory scheme.

According to EPA, the Clean Water Rule:

  1. Clearly defines and protects tributaries that impact the health of downstream waters, defining tributaries as waterbodies with physical features of flowing water—a bed, bank and ordinary high water mark;
  2. Provides certainty in how far safeguards extend to nearby waters, protecting waters next to rivers and lakes and their tributaries;
  3.  Protects the nation’s regional water treasures, including Carolina bays;
  4. Focuses on streams, including ditches that are constructed out of streams or function like streams;
  5. Maintains the status of waters within municipal separate storm sewer systems; and
  6. Reduces the use of case-specific analysis of waters.

A coalition of industry groups, led by the American Farm Bureau, opposed the agencies’ proposed rule and are evaluating whether to challenge the final rule. The Farm Bureau has expressed particular concern over the regulation of ephemeral streams, ditches, small ponds and isolated wetlands, explaining that regulatory overreach harms property values and inhibits economic growth.