The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers jointly released a proposed rule to clarify stream and wetlands protection under the Clean Water Act (CWA).

CWA protection for streams and wetlands became confusing and complex following Supreme Court decisions in 2001 and 2006. For nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups and the public asked for a rulemaking to provide clarity.

According to an EPA press release, the proposed rule does not protect any new types of waters that have not historically been covered under the Clean Water Act, and is consistent with the Supreme Court’s more narrow reading of CWA jurisdiction.

The proposed rule preserves CWA exemptions and exclusions for agriculture. Additionally, EPA and the Army Corps have coordinated with USDA to develop an interpretive rule to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to Section 404 dredged or fill permitting requirements. The agencies will work together to implement these new exemptions, and periodically review and update USDA’s Natural Resources Conservation Service conservation practice standards and activities that would qualify under the exemption. Any agriculture activity that does not result in the discharge of a pollutant to waters of the U.S. still does not require a permit.

About 60% of stream miles in the U.S only flow seasonally or after rain, but have a considerable impact on the downstream waters, according to EPA. And approximately 117 million people – one in three Americans – get drinking water from public systems that rely in part on these streams.

Specifically, the proposed rule clarifies that under the CWA and based on the science:

• Most seasonal and rain dependent streams are protected.

• Wetlands near rivers and streams are protected.

• Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not protecting similarly situated waters in certain geographic areas or adding to the categories of waters protected without case specific analysis. 

The proposed rule will be open for public comment for 90 days from publication in the Federal Register. The interpretive rule for agricultural activities is effective immediately.

More information:

Watch Administrator McCarthy’s overview:

Watch Deputy Chief of Staff Arvin Ganesan’s explanation: