Today, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) released the long-awaited Notice of Proposed Rulemaking (NOPR) redefining the federal Clean Water Act’s (CWA) definition of “waters of the United States.” The NOPR will likely affect project development and operations across the energy, construction, and building sectors.
EPA and Army Corps held a joint conference call this morning to provide a general overview of the NOPR and a short Q&A session. According to the agencies, the proposed rule will clarify which streams, wetlands and other waters are considered “water of the United States” and, thus, subject to permitting requirements under the CWA.
The agencies also discussed an “Interpretive Rule” that was released separately today. The Interpretive Rule addresses certain agricultural permitting exemptions under the CWA and, according to the agencies, is intended to incentivize conservation practices.
The structure of today’s NOPR is similar to a version of the rule which was leaked in November 2013. However, the definition of certain key terms included in the NOPR diverge from the leaked draft in ways that are likely to affect the overall reach of this new formulation of “waters of the United States.” Van Ness Feldman is preparing a detailed alert summarizing these changes and discussing the implications of the NOPR, which will be available in the near future.