By Glen Hansen

In September 2013, the United States Environmental Protection Agency and the U.S. Army Corps of Engineers sent a draft rule to clarify the jurisdiction of the Clean Water Act to the Office of Management and Budget for interagency review. The proposed rule is designed to provide greater consistency, certainty, and predictability nationwide in determining what are “Waters of the United States” under the Clean Water Act. The proposed rule includes exclusions from Clean Water Act jurisdiction for:

•         Non-tidal drainage, including tiles, and irrigation ditches excavated on dry land.

•         Artificially irrigated areas that would be dry if irrigation stops.

•         Artificial lakes or ponds used for purposes such as stock watering or irrigation.

•         Areas artificially flooded for rice growing.

•         Artificial ornamental waters created for primarily aesthetic reasons.

•         Water-filled depressions created as a result of construction activity.

•         Pits excavated in uplands for fill, sand, or gravel that fill with water.

The draft rule takes into consideration the draft science report titled “Connectivity of Streams and Wetlands to Downstream Waters,” which presents a review and synthesis of peer reviewed scientific literature. EPA’s independent Science Advisory Board is soliciting public comment and will hold a public peer review meeting later this year. That report will eventually provide a scientific basis needed to clarify Clean Water Act jurisdiction, including a description of the factors that influence connectivity and the mechanisms by which connected waters affect downstream waters.

For more information:

http://water.epa.gov/lawsregs/guidance/wetlands/CWAwaters.cfm;

http://cfpub.epa.gov/ncea/cfm/recordisplay.cfm?deid=238345

Glen Hansen is senior counsel at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues. 

The Central Valley Regional Water Quality Control Board (“CVRWQCB”) adopted new waste discharge requirements within the Tulare Lake Basin area on September 19, 2013, in order to protect ground and surface water from irrigated agricultural discharges.  The area impacted by the new requirements includes farmland in Fresno, Tulare, Kings and Kern counties.  The requirements apply to farmers in the region who join an approved third-party group or coalition.  (Those growers who do not join a coalition will be directly regulated by the CVRWQCB, and will be subject to higher costs.)  Under the new rules, farmers will be required to report their water quality protection practices to their respective coalition.  Growers who have not already implemented practices that protect water quality will be required to improve their practices.  All growers will be required to prepare nitrogen management plans. Farmers whose land lies above the most vulnerable groundwater aquifers must submit information to the coalition on their nitrogen use efficiency. The coalition will prepare technical reports, conduct required studies and monitoring, and submit reports to the Central Valley Water Board on behalf of the growers.

For more information:

http://www.swrcb.ca.gov/rwqcb5/press_room/announcements/press_releases/r5_2013sep24_ilrptlbwdr_press.pdf

http://www.fresnobee.com/2013/09/19/3507274/state-oks-new-water-rules-for.html

http://www.bakersfieldcalifornian.com/local/x558589998/State-mandates-additional-groundwater-monitoring-in-valley