EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands

Agriculture’s Exemptions and Exclusions from Clean Water Act Expanded by Proposal

WASHINGTON — The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Army Corps) today jointly released a proposed rule to clarify protection under the Clean Water Act for streams and wetlands that form the foundation of the nation’s water resources. The proposed rule will benefit businesses by increasing efficiency in determining coverage of the Clean Water Act. The agencies are launching a robust outreach effort over the next 90 days, holding discussions around the country and gathering input needed to shape a final rule.

Read more: EPA and Army Corps of Engineers Clarify Protection for Nation’s Streams and Wetlands

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California Water Atlas Posted Online

Sacramento, CA - The "first-ever" California Water Rights Atlas has been posted online, making thousands of water rights claims available to the public.

The Resource Renewal Institute announced the new website ( http://ca.statewater.org/water-rights ) on Friday. "Water is the most important issue facing California," former California Resources Secretary Huey Johnson said at a conference celebrating the new atlas. "The future hinges on how well we handle it."

Read more: California Water Atlas Posted Online

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EPA Issues Clean Water Act Permit for Small Suction Dredge Miners in Idaho

(Boise, ID - April 4, 2013) Starting today, small-scale suction dredge miners may begin applying for a new federal water discharge permit to lawfully operate their dredges in Idaho’s rivers lakes and streams.  Mining for gold using small suction dredges is a popular activity in Idaho with hundreds of dredges in use, especially during the summer.  Small-scale suction dredge miners (using intake nozzles of five inches in diameter or less and engines rated at 15 horsepower or less) will need to apply for coverage under the new Clean Water Act general permit. Larger suction dredges are not covered by this general permit and need to be authorized under a separate individual permit.

Read more: EPA Issues Clean Water Act Permit for Small Suction Dredge Miners in Idaho

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Third Circuit Weighs in on Clean Water Act Jurisdiction under Rapanos

The Third Circuit is the latest federal appeals court to attempt to decipher the U.S. Supreme Court’s Rapanos v. United States[1] decision. Rapanos is the 4:1:4 decision from 2006 – famous in Clean Water Act (“CWA”) circles – in which the Supreme Court announced differing standards for delineating the reach of federal jurisdiction over wetlands and other “isolated waters.” In United States v. Donovan,[2] the Third Circuit, joining two other circuits, holds that a wetland falls within CWA jurisdiction if it satisfies either test announced in the fractured Rapanos decision. Specifically, the court held that a wetland falls within CWA jurisdiction if: (1) Justice Scalia’s plurality test is met – i.e., there is a “continuous surface connection” between a wetland and a water of the United States in its own right, “so that there is no clear demarcation between ‘waters’ and ‘wetlands’”; or (2) Justice Kennedy’s “significant nexus” test is met – i.e., there is “a significant nexus to waters that are or were navigable in fact or that could reasonably be so made” so that, “either alone or in combination with similarly situated lands in the region,” the wetlands “significantly affect the chemical, physical, and biological integrity of the covered waters more readily understood as ‘navigable.’”

Donovan follows on the heels of the U.S. Army Corps of Engineers’ (“Corps”) recently released draft guidance regarding CWA jurisdiction.[3] The draft guidance relies heavily on Justice Kennedy’s concurring opinion in Rapanos, and replaces the Corps’ previous 2008 guidance interpreting CWA jurisdiction under Rapanos. Since recent congressional efforts to clarify the CWA following Rapanos have failed and the Supreme Court appears unwilling to revisit the issue anytime soon, lower court decisions and agency guidance will continue to guide CWA jurisdiction for the foreseeable future.

Statutory Background

The CWA prohibits the unpermitted discharge of pollutants into “navigable waters” from any point source.

Read more at: http://www.martenlaw.com/newsletter/20111206-clean-water-act-jurisdiction

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Study Shows Wetland Loss Slowing

Five-Year Survey Shows Wetlands Losses are Slowing, Marking Conservation Gains and Need for Continued Investment in Habitat

WASHINGTON -- America’s wetlands declined slightly from 2004-2009, underscoring the need for continued conservation and restoration efforts, according to a report issued today by the Department of the Interior’s U.S. Fish and Wildlife Service. The findings are consistent with the Service’s Status and Trends Wetlands reports from previous decades that reflect a continuous but diminishing decline in wetlands habitat over time.

Read more: Study Shows Wetland Loss Slowing

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