EPA And The Army Corps Announce A Proposed Rule To Clarify Wetlands And Tributary Jurisdiction

Burr & Forman

In a news release dated March 25th 2014,  EPA and the Army Corps outlined a new proposed joint rule to clarify the scope and definition of the “waters of the United States” under the Clean Water Act in an attempt to address issues raised in  two separate Supreme Court cases decided in 2001 and 2006. The proposed rule clarifies what upstream waters, including natural and artificial wetlands, tributaries and other types of waters are regulated due to their relationship with downstream waters and watersheds. As the news release provides, the proposed rule clarifies that  the following are protected : 1) Most seasonal and rain-dependent streams, 2)Wetlands near rivers and streams , and 3) Other types of waters such as “praire potholes, playa lakes, mud flats and sand fats” after a case specific analysis of whether a connection to downstream waters is  found to be significant. Although the proposed rule preserves the Clean Water Act’s exemptions and exclusions for agriculture, some commentators have expressed a general concern over the claimed expansion of the agencies regulatory authority. The proposed Rule will be published in the Federal Register in the near future.

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