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EPA, USACE Rule Seeks Clearer Definitions of US Waters


The US Environmental Protection Agency and the Army Corps of Engineers released their proposed rule clarifying wetlands and streams protected under the Clean Water Act. First impressions from the mitigation banking industry were positive with actors agreeing clearer definitions could streamline the permitting process and eliminate time-consuming debates.


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10 April 2014 | Late last month, the US Army Corp of Engineers together with the Environmental Protection Agency released a proposed rule that would define the scope of waters protected under the Clean Water Act (CWA).

In short, the Waters of the United States rule contends it would not expand on the CWA's traditional categories of waters or its jurisdiction but instead provide clarity on which streams, wetlands, and tributaries fall under the CWA jurisdiction. Seasonal or intermittent streams – which account for 60 percent of stream-miles in the country - are protected. Rain-dependent, also known as ephemeral streams are covered as are wetlands adjacent to jurisdictional rivers and streams. Other waters with an uncertain downstream connection, such as isolated “prairie pothole” wetlands, will be considered on a case-by-case basis.

The definition of waters covered under the CWA and when it protects wetlands and streams has been murky for over a decade after two confusing Supreme Court rulings. Environmental groups, the agriculture and industry sector as well as public officials were left asking for more clarification.

The EPA statement says this new rule will provide just that with all sectors benefiting from the improved efficiency. The rule relies heavily on a scientific report released by the EPA last fall assessing hydrological connectivity of wetlands and streams to downstream waters.

In the mitigation banking industry, first impressions of the proposal were good. Both Doug Lashley, president of the National Mitigation Banking Association (NMBA) and J. Adams Riggsbee, president of mitigation banking firm RiverBank Ecosystems, were satisfied with the rule's basis in science.

The NMBA wants to provide the best source of compensatory mitigation possible with a no net-loss of wetlands, Lashley says. As it stands, a no net-loss policy isn't possible because of basic concepts in CWA regulations like “waters” and “adjacent” have been left open to interpretation. So the clarification this rule is proposing would lead to better and more efficient mitigation, Lashley says.  

A big part of that clarity is defining US waters. The definitions are a huge help, says Riggsbee, and would also help prevent the time-consuming debates over what constitutes a stream under the CWA.

"This rule has the potential to streamline the permitting process," he says. "It will make it much easier for the regulatory community to know when a tributary is considered waters of the US."

The rule's inclusion of basically all intermittent and ephemeral streams under the CWA is helpful to the bankers. Majority of demand for stream mitigation banking offsets comes from these types of waters so a lot of confusion will be cleared up.

However both Lashley and Riggsbee are mindful of a possible Supreme Court decision that would alter the rule before it becomes final.

The rule will be made public through the Federal Register and will be open for public comment for 90 days.

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