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The Clean Water Act and Wetlands: EPA and Army Corps Rule on “waters of the United States”

In the December/January 2013-2014 MNLICA Newsletter, we reported that the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers sent a draft rule defining the phrase “waters of the United States” under the Clean Water Act to the Office of Management and Budget for administrative review. While under review, the proposed rule was not publicly released. At the end of that month, the Scientific Advisory Board of the EPA released a report titled Connectivity of Streams and Wetlands to Downstream Waters:  A Review and Synthesis of the Scientific Evidence to serve as the scientific support for the upcoming release of the new rule. (For a discussion of the EPA report, the definition of “jurisdictional wetlands,” and the Rapanos decision by the U.S. Supreme Court, please refer to our article in the December/January 2013-2014 edition of this newsletter).

On March 25, 2014, the EPA and Army Corps jointly released the proposed rule defining the scope of streams and wetlands the agencies claim jurisdiction for protection under the Clean Water Act. Not surprisingly, last fall’s scientific report was a true predictor of the broad and expansive rule released by the agencies.

Since Rapanos was issued in 2006, the regulated community has struggled to understand the scope of the EPA and Army Corps’ regulatory authority under the Clean Water Act. In promotional materials released by EPA, the agency claims the proposed rule “reduces confusion about Clean Water Act protection,” “clarifies types of waters covered under the Clean Water Act,” “saves businesses time and money,” “provides more benefits to public than costs,” and “helps states to protect their waters.” In addition, EPA has been quick to claim that input from the agricultural community helped shape its proposal and that the agency coordinated with the USDA to “ensure that 56 conservation practices that protect or improve water quality will not be subject to Clean Water Act dredge and fill permitting requirements.”

Our initial review of the rule leads us to conclude that many of the agencies’ claims are over-simplified or exaggerated. Many of the conservation practices now “exempted” from the rule were never subject to Clean Water Act jurisdiction in the first place. The rule will have a substantial impact on counties and watershed districts serving as public drainage authorities, as well as significant impacts to townships and counties serving as road authorities. In addition, the rule provides significant changes for property owners and contractors that do work on land which, for the first time, will now be considered a “jurisdictional wetland” and require Army Corps authorization or permits.

At a recent meeting of wetland delineators held in St. Paul, Minnesota, the Chief for the St. Paul District Regulatory Branch of the Army Corps told the delineators that all wetlands in the prairie pothole region (Minnesota, Iowa, North Dakota, South Dakota, and Montana) are now subject to the Army Corps’ jurisdiction under the new rule, a position never before taken by the agency. The rule expands the definition of “tributaries” to include any feature that has a bed, bank, and ordinary high water mark, regardless of the amount, frequency, or duration of flow. With the expanded definition of “tributaries” to include even intermittent or ephemeral streams that only run during excessive rainfalls, any wetland neighboring those tributaries, including all wetlands in the “riparian area” or “floodplain” of those wetlands, will now be subject to Clean Water Act jurisdiction.

On Monday, April 21, 2014, the rule was officially published in the Federal Register, which begins the 90 day period for public comment required for federal rulemaking. Rinke Noonan has been asked to draft comments to be submitted to the EPA and the Army Corps on behalf of many of our public drainage authority clients. Comments to the rule must be submitted to the agencies on or before July 21, 2014. In order for our comments to represent the largest group possible, we sent a letter to all of our public drainage authority clients regarding the new rule and offering each of them an opportunity to join in the comments and contribute toward its preparation. If you have questions regarding the proposed rule, submitting public comments, or would like to join in submitting public comments as a public drainage authority, please contact our office.

© 2014 Rinke Noonan