EPA, Army Corps Rule Seeks to Clarify Clean Water Act

EPA and the US Army Corps of Engineers jointly released a proposed rule that they say would clarify protection under the Clean Water Act (CWA) for streams and wetlands. The rule would extend protections to wetlands and intermittent streams that flow seasonally or only after a rainfall.

Determining CWA protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006, the agencies said.

The proposed definitions of waters will apply to all CWA programs and the rule does not protect any new types of waters that have not historically been covered under the law, the agencies said.

Specifically, the proposed rule clarifies that under the Clean Water Act and based on the science:

• Most seasonal and rain dependent streams are protected.
• Wetlands near rivers and streams are protected.
• Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis.

The proposed rule preserves the exemptions and exclusions for agriculture.

The agencies are launching an outreach effort over the next 90 days, holding discussions around the country and gathering input.

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