EPA and the Army Corps of Engineers jointly released a proposed rule last week that defines the scope of “waters” under the Clean Water Act. Once the proposed rule is published, the public will have a 90 day comment period before the rule becomes final. The agencies simultaneously issued an interpretive rule on the exemption from permitting requirements in Section 404(f)(l)(A) of the Clean Water Act for certain discharges of dredged material or fill “from normal farming, silviculture and ranching activities.” In contrast to the proposed rule on the Clean Water Act, the interpretive rule addressing the “normal farming” exemption is effective immediately.
The proposed rule aims to provide some clarity on an issue that had been muddied by the Supreme Court in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (“SWANCC“) and Rapanos v. United States, 567 U.S. 715 (2006). Those rulings had struck down as overbroad the agencies’ interpretation of their jurisdiction in specific instances to regulate discharges into “waters of the United States.” In response to these decisions, the agency developed guidance in 2008 that required case-by-case determinations of jurisdiction for certain categories of waters. Under the new proposed rule, the agencies will now assert blanket jurisdiction over some of those categories — most notably, all “tributaries” as defined in the proposed rule, and adjacent wetlands.
The press release accompanying the proposed rule emphasizes that the new definition of “waters of the United States” does not cover any new types of waters that were not historically covered under the Clean Water Act, and it notes that the proposed rule preserves existing Clean Water Act exemptions for agriculture. The simultaneous release of the interpretive rule on the exemption for “normal farming activities” and publication of a memorandum of understanding between the U.S. Army Corp of Engineers and the Department of Agriculture likewise appears to be aimed at reassuring the agriculture industry that the proposed rule will not result in radical changes in Clean Water Act enforcement. Nevertheless, initial reaction to the proposed rule has not been universally positive: the American Farm Bureau Federation released a statement earlier this week promising to “dedicate itself to opposing this attempted end run around the limits set by Congress and the Supreme Court.”