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EPA Webinar on New Clean Water Rule Held this Week – and an Update on Litigation

EPA held a webinar with the U.S. Army Corps of Engineers this week to discuss the new Clean Water Rule that was finalized in May and became effective on August 28, 2015.  The rule clarifies which waters are protected under the Clean Water Act; provides new definitions of “tributaries” and “adjacent waters”; and explains how case specific significant nexus analyses are conducted and determined.  During the webinar, Ken Kopocis of EPA and Gib Owen of the Army provided an overview of the rule and answered questions about key components of its implementation. They noted that EPA and the Army have signed a joint memorandum and are coordinating on rule implementation efforts and conducting training webinars.  The agencies have also developed a new user-friendly web site where they will post jurisdictional determinations for specific waters as they are finalized, beginning in the near future.  In addition, the agencies are developing new permitting forms and documents and hope to have them available soon.  Some of the key discussion points from the webinar questions include the following:

  • The new rule retains exclusions for prior converted cropland and waste treatment systems and adds exclusions for groundwater and stormwater (MS4) control features and wastewater recycling structures constructed in dryland.  There are no changes to the jurisdiction of MS4 components in streams.
  • The 405 permit exemptions for farming and ranching activities continue without the need for a permit (whether they are jurisdictional or not).
  • The new rule will not change previously approved determinations.  Those determinations are valid for five years unless new site-specific information becomes available.
  • The 1985 Farm Bill exemptions for prior converted cropland continue to be valid under the new rule.  NRCS makes these determinations and EPA has not opposed them.
  • If a stream goes underground in a karst area and comes back out downstream, EPA would conduct an analysis to determine if it is jurisdictional.

For more information and to read the rule, visit EPA’s web site at:  http://www2.epa.gov/cleanwaterrule.

In a related development, EPA has announced that, under an order issued by the District Court of North Dakota, the parties that obtained a preliminary injunction to delay implementation of the rule are not currently subject to the new rule, and instead continue to be subject to the prior regulation.  In light of the order, EPA and the Army Corps of Engineers will continue to implement the prior regulation (i.e., not the new rule) in the following states:  Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.

Attachment — Clean Water Rule Litigation Statement