Wetlands such as this one in the prairie pothole region of North Dakota may regain protection under the EPA’s proposed rule that clarifies the types of waters protected under the Clean Water Act (Credit: Kathleen Macek-Rowland, USGS).
The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (USACE) jointly released a proposed rule that is intended to clear up long-standing confusion over the types of waters that are covered under the Clean Water Act (CWA).
Approximately 20 million acres of wetlands have cumulatively lost protections under the CWA as a result of EPA and USACE guidance issued in 2003 and 2009 as well as Supreme Court decisions made in 2001 and 2006. The U.S. Fish and Wildlife Service found the rate of wetland loss accelerated by 140 percent between 2004 and 2009, after the Supreme Court rulings. This lack of protection particularly affected isolated wetlands such as prairie potholes and ephemeral or intermittent streams.
Under the proposed rule, protections for most seasonal and rain-dependent streams and wetlands near rivers and streams will be reinstated. For example, most tributary streams in the southwestern U.S. do not flow year-round and have been under uncertain jurisdiction. The proposed rule would clearly cover these waters. Wetlands such as the prairie potholes in the upper Midwest, which have a more uncertain connection to downstream waters, will need to be evaluated on a case-by-case basis. The EPA and USACE specifically ask for public comment in their proposed rule on whether there are categories of waters that could automatically be ruled outside of jurisdiction without a case-by-case analysis.
The EPA states that no new types of waters would be covered that have not been covered in the past. The proposed rule would preserve CWA exemptions and
exclusions for agriculture and would exclude, for the first time, many upland water features important for farming and forestry.
The EPA and USACE will be taking comments on the proposed rule for 90 days once it has been published in the Federal Register.
Sources: EPA (accessed March, 2014), EPA definition of Waters
of the
U.S. (March, 2014), TRCP (accessed March, 2014), Energy and Environment News (March 25, 2014)
