Important Changes to the Clean Water Act

As it has already been finalized, let’s talk now about revising the Definition of “Waters of the United States.” On December 30, 2022, the agencies announced the final “Revised Definition of ‘Waters of the United States'” rule. On January 18, 2023, the rule was published in the Federal Register; the rule will be effective on March 20, 2023. The agencies’ definition of “waters of the United States” provides jurisdiction over waterbodies that Congress clearly intended to protect under the Clean Water Act, such as traditional navigable waters (e.g., certain large rivers and lakes), territorial seas, and interstate waters. For upstream waters that may significantly affect the integrity of the downstream waters that Congress clearly intended to protect, the rule provides a reasonable approach that recognizes geographic differences in waters.

What seems more important in this ruling are the exclusions. The agencies’ definition of “waters of the United States” does not affect the longstanding activity [1] based on permitting exemptions provided to the agricultural community by the Clean Water Act. Agricultural activities that are exempt from section 404 permitting include:

• Normal farming, silviculture, and ranching activities such as plowing, seeding, cultivating, minor drainage, harvesting to produce food, fiber, and forest products, or upland soil and water conservation practices
• Maintenance of dikes, levees, groins, riprap, and transportation structures
• Construction of farm or stock ponds or irrigation ditches, or the maintenance of drainage ditches, and
• Construction or maintenance of farm roads, in accordance with best management practices

Additionally, the final rule includes two longstanding exclusions from the definition of “waters of the United States.”

• Prior converted cropland
• Waste treatment systems. Features excluded under this category include treatment ponds or lagoons that are designed to meet the requirements of the Clean Water Act

Even if landowners wish to pursue activities that are or may be subject to the permit requirements of the Clean Water Act and that will impact the “waters of the United States” on their property, they may be able to obtain coverage under a general permit. General permits are issued on a nationwide, regional, or statewide basis for specific categories of activities that have minimal individual or cumulative adverse environmental effects. The vast majority of activities subject to Clean Water Act section 404 permits are authorized under general permits; however, some activities do require authorization under an individual permit (generally because of a high level of impact on “waters of the United States” or because the applicant cannot comply with all conditions of a general permit).

Should you need an assessment of your property and activities regarding the changes in the Clean Water Act, please reach out to our Environmental team for assistance.

Erica Montefusco
Senior Vice President – Risk and Compliance Services
(605) 431-2406 Mobile
erica.montefusco@protect.llc