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.[1] 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.[2]

The proposed rule clarifies the Act’s jurisdiction over the nation’s streams and wetlands by amending its definition of “water.”[3] Today, Supreme Court decisions in 2001 and 2006[4] have left many uncertain as to the actual breadth of the Act’s coverage.[5] The proposed rule remedies this uncertainty by explicitly listing wetlands and intermittent streams as protected waters.[6] The EPA and Corps of Engineers are currently engaged in a 90-day outreach effort to solicit comment before the final rule making.[7]

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.”[8] 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.[9]

Since the proposal’s release, is has been hailed as the “biggest step forward for clean water in more than a decade.”[10] 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.[11]

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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/.
[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.