In anticipation of the proposed Clean Water Act rule to be released tomorrow we have put together a memo with relevant background information and what to expect from the proposal. The focus of the proposed rule will be the definition of “waters of the U.S.” which determines which bodies of water and wetlands fall within the Clean Water Act’s National Pollutant Discharge Elimination System (NPDES) and Section 404 wetland permitting programs.
The draft proposal is likely to follow the principles that Justice Scalia outlined in the Rapanos plurality opinion and address the following issues:
- Whether streams that do not flow consistently year-round (perennial, intermittent, and ephemeral streams) can be considered “waters of the U.S.”
- The connectedness standard that wetlands adjacent to “waters of the U.S.” must meet in order to also be “waters of the U.S.”