If you have any questions in regards to the above, please do not hesitate to contact our offices so that we may explain the amendments to the provisions of the Code in more detail. Our address is:
Fiddler González & Rodríguez, P.S.C., P.O. Box 363507, San Juan, PR 00936-3507. Our fax (787) 759-3108.
We welcome your questions and comments.
Juan Carlos Gómez Escarce
María L. González Hernández
Pedro J. Reyes Bibiloni
The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) proposed a new rule defining the scope of waters covered under the Clean Water Act (CWA). The proposed regulation defines waters of the United States to mean: (1) all waters which are currently used, were used in the past or may be susceptible to use in interstate or foreign commerce, including waters subject to the ebb and flow of the tide (the Traditional Navigable Waters); (2) all interstate waters, including interstate wetlands; (3) the territorial seas; (4) impoundments of Traditional Navigable Waters, interstate waters, including interstate wetlands, the territorial seas and tributaries of such waters; (5) tributaries of Traditional Navigable Waters, interstate waters or the territorial seas; and (6) adjacent waters including adjacent wetlands. Waters in these categories would be jurisdictional waters of the United States. In addition, EPA and USACE propose that other waters could be determined waters of the United States through a case-specific basis provided that those waters alone or in a combination with other similarly situated waters located in the region, have a significant nexus to a Traditional Navigable Waters.
The proposal clarifies that the following are not waters of the United States: (1) waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the CWA; (2) prior converted cropland; (3) ditches that are excavated in uplands, drain only uplands, and have less than perennial flow; and (4) ditches that do not contribute flow, either directly or through another water, to a water identified in the definition of waters of United States.
The following features are also excluded from the definition:
1. artificially irrigated areas that would revert to upland should application of irrigation ceases; 2. artificial lakes or ponds created by excavating and/or diking dry land and used exclusively as stock watering, irrigation, settling basins, or rice growing; 3. artificial reflecting pools or swimming pools created by excavating and/or diking dry land; 4. small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons; 5. water-filled depressions created incidental to construction activity; 6. groundwater, including groundwater drained through subsurface drainage systems; and 7. gullies and rills and non-wetland swales.
EPA has indicated that this new definition clarifies the types of waters protected by the CWA, saves time and money to businesses, helps States protect their waters, and maintains the existing coverage of waters of the United States under the CWA.
If adopted this proposed rule will amend, among others, the USACE Navigation and Navigable Waters regulation, and EPA’s regulations related to discharge of oil, oil pollution prevention, designation of hazardous substance, EPA administered National Pollutant Discharge Elimination System permit program, Section 404(b)(1) Guidelines for Specification of Disposal Sites for Dredged or Fill Material, and the National Oil and Hazardous Substances Pollution Contingency Plan.
EPA will receive comments from the public until July 21, 2014.
If you have any questions regarding this matter or would like to know more of our Firm’s experience in this area please call us. If you know anyone that would like to read the FGR Environmental Watch, please feel free to forward this article. Stay tuned for further updates of FGR ENVIRONMENTAL WATCH.
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