http://www.natlawreview.c...ter-act-jurisdiction

"On May 27, 2015, the United States Environmental Protection Agency and the Army Corps of Engineers released a Final Rule defining “Waters of the United States” under the Clean Water Act (the “CWA”). The new definition modifies the rule that has been in place since 1986 and changes the scope of federal jurisdiction under the CWA. Lewis Roca Rothgerber is issuing this alert because the new definition affects clients in the real estate, construction, mining, manufacturing, state and local government, utility, oil and gas, and agriculture sectors that develop, own or operate real property.

The CWA generally regulates discharges to “navigable waters.” Navigable waters are defined in the CWA to include the “Waters of the United States,” yet Congress did not define “Waters of the United States” in the CWA. The most recent Supreme Court decisions addressing the extent of federal jurisdiction over water bodies under the CWA created considerable uncertainty. This new rule is the government’s attempt to clarify that federal jurisdiction by defining which waters are “Waters of the United States.”

The new definition affects the permitting and compliance requirements under a number of CWA programs, including, for instance, wastewater discharge permitting, Stormwater permitting and “dredge and fill” and wetlands regulation. The rule will become effective 60 days after it is published in the Federal Register.

While most navigable waters such as large rivers and lakes have always been clearly regulated under the CWA, the new rule clarifies and extends federal jurisdiction to include remote tributaries, adjacent waters and wetlands, and certain kinds of region-specific features such as “prairie potholes” and “western vernal pools” that are not themselves navigable. The new definitions are potentially far-reaching, and provide the agencies with considerable latitude to require permitting before any discharges (including dredge or fill activities) are made into these jurisdictional waters. The agencies take enforcement of these permitting processes seriously, and developers or other regulated parties must remain vigilant in considering the jurisdictional status of any water or drainage features on project sites in order to avoid potential civil and criminal penalties.

While the new rule is designed to clarify (or, some would argue, expand) the agencies’ already broad jurisdiction, it also contains several new jurisdictional exceptions that will allow many activities and projects to move forward without obtaining federal CWA permits. The agencies have clarified that some types of ditches are non-jurisdictional, and have also made exceptions related to other man-made features associated with mining and construction activity. Of particular interest to clients in the arid west will be the exclusion for certain types of erosional features, such as gullies, and other ephemeral features. These exclusions, however, are not as clear as the agencies believe, and the challenge for the regulated community will be to navigate the complex set of inclusions and exclusions to decisively identify the features on a particular project site as jurisdictional or non-jurisdictional. "

On Sage Grouse, BLM is working to keep the bird OFF the T&E list.  Even to the extent of putting most all other planning issues on the back burner.  Fish and Wildlife has til the end of Sept. to make the determination to list or not.  An amendment to the Defense funding bill to force F&W to not make that determination for 10 years has passed the House.  We need to make sure the Senate keeps it in that bill.  That gives the state recovery plkans time to take effect and see where we stand.  If listed it will affect not only mining and oil/gas production, but wind and solar energy projects, grazing, all forms of motorized access and recreation, to name a few.  We have been dealing with the Sage Grouse on the Resource Advisory Council I am appointed to since before 2003 when I came on it as a member.

 

Supreme Court has already said if you are dredging it is the same as taking a ladel of soup out of the pot and dumping it right back in.  You are not adding and discharge to the water (existing pot of soup.)  Therefore no one can require a Discharge Permit.  Here in Oregon our state Dept. of Enviornmental Quality requires a 700PM wastewater discharge permit, and no one can get it through thier pea brains we are not discharging waste water.  But they think and know since it has a limited sediment plume, it is BAD and killing fish and eggs, even though the waters are not open during the time eggs are present.  Most waters only have a 3 month period where they are open to dredge.  Now they want another study to see if dredging is harmful, as if the 5 on the west coast are not enough (2 in AK, 2 in CA and 1 already in OR), and all came back as "less than significant impact", meanig virtually not impact to fish or habitat.

Thank you for your comments Arthur, like many things in our Government today they exceed or circumvent existing rulings.

The BLM action is concerning to me and I will be attending the meeting in Leadville come next Thursday night. In my opinion the Sage Grouse are not endangered they have just moved off the roads and trails and are not seen by the parks folks that would rather smoke dope while spotting falcons from the road side then actually getting off their rears and walking off trails. Not saying all are doing this but I can mention a couple.

My concern with the EPA is the overreach of all American Water ways by the new definition of "Navigable Waters" which includes stock ponds, mining waste water, and even drainage ditches built on private property, and it goes much further than that. The most concerning thing about this new law which I am sure will end up before the Supreme Court is that you can't read it until after it takes effect and only then, and a few years of legal battles will it be able to be challenged in the Supreme Court. I don't have to remind anybody on the West Coast of the restrictions on dredging, and I am afraid those restriction may soon be nation wide, now that the EPA will have Jurisdiction they will enforce it.

Please go to the EPA website and try to find the new 2000+ page law, it doesn't exist, and if you want to file a Freedom of Information request it will cost you no less than $500. But you can join them on facebook and support them, and you can also contribute or turn in EPA offenders. I seriously doubt even if you pay for the full document that you will receive it before the law takes effect.