According to the Wednesday, March 26 Wall Street Journal, the Obama Administration has proposed new rules "aimed at putting more small bodies of water and wetlands under Clean Water Act protections". The WSJ continues with "The rules were unveiled by the US Environmental Protection Agency and the U.S. Army Corps of Engineers and attempt to reverse the effects of the Supreme Court's 2006 Rapanos ruling, which narrowed the government's ability to enforce pollution laws for smaller streams and bodies of water."
The following information was provided by the Drovers CattleNetwork (03/25/2014):
'Once published in the Federal Register, the agencies will accept public comment for 90 days. In a news release, the EPA says the proposed rule will clarify jurisdiction over streams, wetlands and other waters that have been a subject of confusion for decades. It will apply to all Clean Water Act programs, but the EPA says it will not protect any new types of waters that have not historically been covered under the Act.
"We are clarifying protection for the upstream waters that are absolutely vital to downstream communities," said EPA Administrator Gina McCarthy. "Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations."
While the EPA Administrator told reporters Tuesday the proposal does not expand the CWA, the agency's own economic analysis shows an increase positive jurisdictional determinations of 3 percent under the CWA Section 404 program. The analysis broadly applied the 3 percent increase assumption to other permitting programs. Additionally, the analysis claims the proposed rule will impact an additional 1,332 acres nationwide under Section 404 and says the benefits will outweigh the costs by a ratio of approximately 2:1. Some have questioned the low estimates EPA cites in the analysis saying the agency has far underestimated the impacts it will have nationwide.
According to EPA, the proposed rule clarifies that under the CWA:
- 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 significant.
The agencies say the proposed rule is based on a report titled 'Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence'. The report, at the time the rule was proposed, has not been finalized and is still undergoing peer review. Agricultural groups have questioned how the agency can purport to base a proposed rule on a report that has not been finalized.
Senator David Vitter (R. LA) the top Republican on the Senate Environment and Public Works Committee said the EPA was undertaking "one of the most significant private-property grabs in U.S. history" that would "give the federal government outright permitting authority over virtually any wet area in the country".'
This ruling may have significant impacts on North Carolina environmental regulations, such as the Jordan Lake rules, where upstream water bodies are regulated based on their impact to larger bodies downstream.
For more information on this issue, go to http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm.
