Clean Water Rule Finalized on May 27, 2015

On May 27, 2015, United States Environmental Protection Agency (USEPA) and US Army finalized the Clean Water Rule intended to clarify what waters are protected under the 1972 Clean Water Act (CWA) spurred by two Supreme Court decisions from 2001 and 2006. The Clean Water Rule will be effective 60 days after publication in the Federal Register. According to the New York Times, the Clean Water Rule applies to about 60 percent of the nation’s water bodies.

In short, the Clean Water Rule will provide protections for some smaller streams and headwaters, and other water sources such as wetlands, previously lacking clear protection. Here is a summary of what, according to USEPA, the Clean Water Rule does and does not do.

The Clean Water Rule does…

  • Clearly define and protect tributaries that impact the health of downstream waters.
    • Protects navigable waterways and their tributaries, but the tributary must show physical features of flowing water, such as a bed, bank, and ordinary high water mark, to warrant protection.
      • Under the new rule, an adjacent body of water is protected if it is within the 100-year flood plain (or an area that has a 1 percent chance of flooding each year), but not more than 1,500 feet from a waterway covered under the CWA.
      • The measure will not apply to formations like ditches, where there is not a consistent flow of water.
    • Provides protection for headwaters and wetlands that have these features and science shows can have a significant connection to downstream waters.
  • Focus on streams, not ditches
    • Limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream (i.e., ditches that are not constructed in streams and that flow only when it rains are not covered).
  • Provide certainty in how far safeguards extend to nearby waters.
    • Protects waters next to rivers and lakes and their tributaries (because of potential impact to downstream waters).
    • Sets boundaries on covering nearby waters for the first time that are physical and measurable.
  • Protect the nation’s regional water treasures.
    • Protects prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands when they impact downstream waters.
  • Maintain the status of waters within Municipal Separate Storm Sewer Systems.
    • This does not change how those waters are treated and encourages the use of green infrastructure.
  • Reduce the use of case-specific analysis of waters.
    • Significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.

A CWA permit is only needed if a water is going to be polluted or destroyed.

The Clean Water Rule does not…

  • Protect the types of waters that have not historically been covered under the CWA.
  • Regulate most ditches.
  • Regulate groundwater, shallow subsurface flows, or tile drains.
  • Change policy on irrigation or water transfers.
  • Cover erosional features such as gullies, rills and non-wetland swales (e.g., erosion in a field).
  • Interfere with or change private property rights.
  • Address land use.
  • Create any new permitting requirements for agriculture.

The Clean Water Rule: Definition of “Waters of the United States” can be found at http://www2.epa.gov/sites/production/files/2015-05/documents/clean_water_rule_part_230_3_1.pdf

 

EHS Support Can Help

EHS Support will continue to provide updates on the Clean Water Rule to help organizations determine how extensively the final rule differs from what was originally proposed and understand the implications for their specific operations. For more information, contact Amy Bauer.

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