Legal Alerts Dec 12, 2018

Proposed Federal Clean Water Rule Impacts Cities and Residents

Comments Being Sought

For the second time in the last 4 years, and the seventh since the Clean Water Act was adopted in 1972, the federal government has revised the definition of the term “Waters of the United States” for the purposes of the federal Clean Water Act. The Environmental Protection Agency and the Army Corps of Engineers released a proposed rule Tuesday with the new definition. Like each iteration before it, this one will have broad implications for public agencies and private property owners.
If adopted, the rule will repeal and replace the 2015 rule issued at the end of the Obama administration. Meanwhile, the status of the 2015 rule remains in flux. Because of various challenges (including a trip to the U.S. Supreme Court), the 2015 rule applies in California and 21 other states. In 28 other states, the 2015 rule is put on hold and the EPA’s 2008 Guidance and earlier decisions apply. The highlights of this week’s proposed rule are:

  • “Adjacent wetlands” and similar waters would only be included in CWA jurisdiction if they “are physically and meaningfully connected to other jurisdictional waters.”
  • “Ephemeral streams and related features” would be excluded from CWA jurisdiction.
  • Man-made infrastructure (including water supply and flood control conveyances and storage facilities) remains within the definition of WOTUS, if it was originally constructed on a water body that would otherwise qualify as jurisdictional – but, because of other changes in the proposed rule, the scope of what would qualify is much more limited.
  • The agencies are seeking comment on how the proposed rule will regulate impoundments, storm drains and other man-made infrastructure. The rule and the preamble make clear that the agencies are actively seeking input from people and entities who will be impacted by these aspects of the proposed rule.

The Notice of Proposed Rulemaking provides a 60-day comment period that will end in February, and will include one public meeting in Kansas City on Jan. 23.
If you have questions or concerns about the proposed rule, please contact  the authors of this Legal Alert listed at the right in the firm’s Environmental Law & Natural Resources practice group or your BB&K attorney.

Best Best & Krieger LLP Partner Andre Monette will present a webinar on this development in conjunction with the International Municipal Lawyers Association on Thursday, Dec. 20 at 1 p.m. Eastern/10 a.m. Western. Click here to learn more.

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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué. 

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