Explanation of the New Clean Water Rule
June 2, 2015
Last week, the U.S. Environmental Protection Agency (EPA) issued the final
Clean Water Rule to confirm and clarify protection for wetlands and
waterwaysunder the Clean Water Act of 1972. In the opinion of the U.S. EPA
and others, Supreme Court Cases in 2001 (SWANCC) and 2006 (Rapanos)
muddied the waters of agency jurisdiction under the Act, and promulgated
a complex and confusing series of policies that did little to help applicants
understand what activities required a permit.
This ruling is meant to clarify the scope of the Clean Water Act, provide greater certainty for applicants in regard to jurisdiction, and ensure that determinations of jurisdiction are based on sound scientific and legal precedent. While the rule is described as not increasing overall agency jurisdiction, critics have described the new rule as an expansion of authority and a tool to dictate land use decisions. While more likely to have an effect on farmers and other land owners in states outside of the northeast with less advanced local and regional regulatory programs, the details of the rule and how the rule is implemented should be considered carefully for any development project.
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