Draft Rule Likely to Expand Clean Water Act

The Environmental Protection Agency and the U.S. Army Corps of Engineers (Army Corps) have announced a joint proposed rule to clarify which streams, wetlands and other waters are “waters of the U.S.” and subject to jurisdiction under the federal Clean Water Act (CWA).  The agencies have withdrawn Guidance on the issue and sent the proposed rule to the Office of Management and Budget but have not released it to the public.

At the same time, in support of the proposed rule, EPA released a draft science report entitled “Connectivity of Streams and Wetlands to Downstream Water: A Review and Synthesis of the Scientific Evidence” (Draft Study). Of importance to ACWA members and other western water users, one focus of the Draft Study is the influence of “ephemeral” and “intermittent” streams on downstream rivers, lakes, estuaries and oceans.

Overall the Draft Study reaches three initial conclusions, all of which imply that the agencies’ proposed rule is likely to expand the scope of CWA jurisdiction.  The EPA will accept public comment of the Draft Study until November 6, 2013, and a public meeting will be held December 16-18, 2013, in Washington, DC.

The Draft Study can be found here: http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345

EPA’s blog post announcing this decision can be found here: http://blog.epa.gov/epaconnect/2013/09/watersoftheus/