ORIGINAL BLAST REGARDING RULE
On June 29, 2015 the USEPA and US Army Corps of Engineers published the new Clean Water Rule in the Federal Register.
The rule becomes effective on Aug. 28, 2015 and revises the definition of "Waters of the United States," including wetlands regulated by the federal government.
The agencies state that the final rule responds to criticism of the existing standards of what constitutes jurisdictional waters, wetlands and other geographic features, and will result in jurisdictional determinations being more predictable, less ambiguous and timely.
This is critical because waters, wetlands and other geographical features that are deemed "jurisdictional" are subject to the multiple regulatory requirements of the Clean Water Act, while non-jurisdictional waters are not.
The overall impact is difficult to define because there will be examples where the CWA will apply for the first time and other instances where certain features will be expressly excluded from Army Corps oversight.
The rule more precisely defines jurisdictional "tributaries" including ditches, adjacent wetlands, and clarifies the jurisdiction of wetlands located within the 100-year floodplain of jurisdictional waterways.
More importantly, the rule defines and clarifies areas that are not jurisdictional. It specifically defines certain types of non-jurisdictional ditches and non-jurisdictional geographic features that were previously excavated or constructed in "dry land," including lakes or ponds, water-filled depressions, erosional features and "puddles." Exclusions related to development include stormwater management features constructed in dry land designed to convey, treat and store stormwater, constructed detention and retention basins used for wastewater recycling and groundwater recharge, and many types of ditches.
The Army Corps will use the rule to make jurisdictional determinations, and V3 feels it will clarify certain "gray areas" that have been previously regulated by the Chicago District of the Corps.
Pending or upcoming jurisdictional determinations that involve potentially isolated or non-jurisdictional "waters" or wetlands are being put on hold by the Chicago District until they receive official guidance from Washington, D. C. headquarters.
The rule is being challenged by a number of states, which assert that it will expand the quantity of waters that will fall under federal government review rather than state and municipal guidelines. The National Association of Home Builders also has objected strongly to the rule, stating that
the EPA ignor
ed input, recommendations and areas of concern from the Army Corps regarding the rule.
For more information on the rule and how it may affect any planned project or recent jurisdictional determinations, please contact one of our wetland experts, Tom Slowinski or Scott Brejcha.
