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EPA, US Army Finally Enact the Clean Water Rule

Jun 9 | 2015  by

On behalf of Fausone Bohn, LLP on Tuesday, June 9, 2015.

As of May 27th, the U.S. Environmental Protection Agency (EPA) and the U.S Army finalized the Clean Water Rule, at last bringing clarity to identification and enforcement of protected waters under the Clean Water Act (CWA). The EPA and Army hope that the new rule will be more effective in providing clean water to Americans.

The new rule has four notable characteristics. First, it provides a clear definition of tributaries that warrant protection. A qualified body of water will have physical features of flowing water (a bed, bank, and ordinary high water mark). Second, it sets physical and measurable boundaries to protect waters that are next to, or near, rivers and lakes. Third, it excludes ditches that are not constructed in streams and/or flow only when it rains. Fourth, it significantly limits the use of costly case-specific analysis by providing clear and measurable qualifications to determine if a body of water deserves protection.

It’s about time the EPA and the Army instituted this rule. For over 10 years, they have received pleas for clarity on protections under the CWA from federal, state, and local officials. Prior to the changes, determining whether or not a water-body should be protected required businesses and government agencies to spend large amounts of their time and money. After more than 400 meetings across the country, the EPA and Army were finally able to furnish a rule that clears up the confusion, in addition to increasing the efficiency of determining protection.

There have been negative reactions to the new rule, though. The Michigan Farm Bureau in particular are weary of this added federal oversight and fear that their current use of water sources on their property may now be considered a violation of the CWA.

The Clean Water Rule will not have an immediate effect on the Michigan Department of Environmental Quality (DEQ), as Michigan is one of two states that has authority of its water programs. The EPA is allowing time for state-level agencies like the DEQ to modify their current programs and policies.

For states that have not assumed authority of their water programs, the Clean Water Rule will take effect 60 days after publication in the Federal Register.