EPA Proposal Takes Great Steps to Broaden Clean Water Act Jurisdiction

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By: Connor Egan, Editor-in-Chief

On March 25, 2014, the Environmental Protection Agency and Army Corps of Engineers released a proposed rule amending the Clean Water Act.

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The proposal is a response to a near decade of demand by state and federal legislators and environmental groups to clarify the extent of the Act’s jurisdiction.

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The proposed rule clarifies the Act’s jurisdiction over the nation’s streams and wetlands by amending its definition of “water.”

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Today, Supreme Court decisions in 2001 and 2006

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have left many uncertain as to the actual breadth of the Act’s coverage.

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The proposed rule remedies this uncertainty by explicitly listing wetlands and intermittent streams as protected waters.

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The EPA and Corps of Engineers are currently engaged in a 90-day outreach effort to solicit comment before the final rule making.

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In an op-ed released in conjunction with the proposed rule, EPA Administrator Gina McCarthy explained, “[w]e are clarifying protection for the upstream waters that are absolutely vital to downstream communities.”

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In a coordinate press release, the EPA stressed that the amendments would be consistent with the recent Supreme Court decisions, which seemingly narrowed the scope of Clean Water Act jurisdiction.

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Since the proposal’s release, is has been hailed as the “biggest step forward for clean water in more than a decade.”

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While the rule will not be finalized until early summer, its ratification would bring approximately 20 million acres of wetlands and 2 million miles of streams under EPA protection.

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[1]

EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands: Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded By Proposal, EPA, Mar. 25, 2014,

http://yosemite.epa.gov/opa/admpress.nsf/3881d73f4d4aaa0b85257359003f5348/ae90dedd9595a02485257ca600557e30

[hereinafter Press Release] (publication in Federal Register still pending).

[2]

Id.

[3]

Id.

[4]

See Rapanos v. United States, 547 U.S. 715 (2006); Solid Waste Agency of N. Cook Cnty. v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001).

[5]

Neela Banerjee, Clean Water Act proposal would protect more water sources in West, L.A. Times, Mar. 25, 2014, available at

http://www.latimes.com/nation/la-na-epa-waters-20140326,0,1080552.story#axzz2yznfcabq

.

[6]

Press Release, supra note 2.

[7]

Id.

[8]

Gina McCarthy, Clearer Protections for Clean Water, The Huffington Post, Mar. 25, 2014, available at

http://www.huffingtonpost.com/gina-mccarthy/clearer-protections-for-c_b_5029328.html

.

[9]

Press Release, supra note 2.

[10]

Environment America, EPA Rule Would Close Loopholes in Clean Water Act, Restore Protections for Streams and Wetlands, EcoWatch, Mar. 25, 2014,

http://ecowatch.com/2014/03/25/epa-clean-water-act-restore-protections-wetlands/

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[11]

Kate Bissell, Proposed Rule to Clarify Clean Water Act Coverage, The Wildlife Society, Mar. 31, 2014,

http://news.wildlife.org/featured/proposed-rule-to-clarify-clean-water-act-coverage/

; Juliet Eilperin and Darryl Fears, EPA proposes greater protections for streams, wetlands under Clean Water Act, Wash. Post, Mar. 25, 2014, available at

http://www.washingtonpost.com/national/health-science/epa-proposes-greater-protections-for-streams-wetlands-under-clean-water-act/2014/03/25/4811cd36-b42c-11e3-b899-20667de76985_story.html

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