• EPA Submits Draft Rule and Supporting "Connectivity" In Efforts To Develop Regulatory Definition of "Waters of the United States."
  • October 18, 2013 | Author: Glen C. Hansen
  • Law Firm: Abbott & Kindermann, LLP - Sacramento Office
  • In September 2013, the United States Environmental Protection Agency and the U.S. Army Corps of Engineers sent a draft rule to clarify the jurisdiction of the Clean Water Act to the Office of Management and Budget for interagency review. The proposed rule is designed to provide greater consistency, certainty, and predictability nationwide in determining what are “Waters of the United States” under the Clean Water Act. The proposed rule includes exclusions from Clean Water Act jurisdiction for:

    • Non-tidal drainage, including tiles, and irrigation ditches excavated on dry land.
    • Artificially irrigated areas that would be dry if irrigation stops.
    • Artificial lakes or ponds used for purposes such as stock watering or irrigation.
    • Areas artificially flooded for rice growing.
    • Artificial ornamental waters created for primarily aesthetic reasons.
    • Water-filled depressions created as a result of construction activity.
    • Pits excavated in uplands for fill, sand, or gravel that fill with water.

    The draft rule takes into consideration the draft science report titled “Connectivity of Streams and Wetlands to Downstream Waters,” which presents a review and synthesis of peer reviewed scientific literature. EPA's independent Science Advisory Board is soliciting public comment and will hold a public peer review meeting later this year. That report will eventually provide a scientific basis needed to clarify Clean Water Act jurisdiction, including a description of the factors that influence connectivity and the mechanisms by which connected waters affect downstream waters.

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