On March 25, EPA and the U.S. Army Corps of Engineers announced the release of a proposed rule clarifying the scope of Clean Water Act jurisdiction over streams and wetlands. According to EPA’s press release, the proposed rule “does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court’s more narrow reading of Clean Water Act jurisdiction.” Protected waters include most seasonal and rain-dependent streams and adjacent wetlands. Where connectivity to downstream waterways is less certain, waters will be evaluated on a case-by-case basis.
The proposal was met with strong criticism from Republicans on Capitol Hill, who took particular issue with its definition of streams and "intermittent" waters. Addressing EPA Administrator Gina McCarthy at an EPA budget hearing last week, House Appropriations Committee Chairman Hal Rogers (R-Ky.) contended the proposal would assert federal jurisdiction over "(t)ens of thousands, if not hundreds of thousands, of creeks and streams and dry beds,” noting some areas that could fall under federal oversight “haven't had water in them for decades." Rogers went on to suggest that House appropriators would include language in the upcoming FY15 EPA spending bill to block implementation of the rule.
Conversely, many Democrats on Capitol Hill reacted positively to the proposed rule, arguing that it would allow the government to stop pollutants from entering the sources of drinking water for millions of Americans.
The controversy is not expected to diminish in the months ahead as EPA and the Army Corps work on moving the proposed rule through to final promulgation. Once the proposal is published in the Federal Register, stakeholders will have 90 days to submit comments for consideration as the rule is finalized. AMWA staff will be working with members to develop appropriate feedback during this process.
The rule proposal and numerous support documents are available at EPA’s “Waters of the United States” webpage.