How Changes to Federal Clean Water Act Rule May Affect Landowners

Margaret-Menicucci

Lawyer and Counselor

Recently, the EPA in conjunction with the Army Corps of Engineers  has sought to clarify federal water law in an effort to better define the scope of bodies of water protected under the Clean Water Act. As a continuation of her  3-part series on water, Margaret Menicucci provides insight into this issue.

In late March, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (the “Corps”) jointly proposed to amend the definition of “waters of the United States” under their Clean Water Act rules.  EPA and the Corps state that this change will clarify their jurisdiction, eliminating uncertainty for many businesses regulated under the Act.  We know there is concern as well as confusion about whether that change would impair how landowners manage the streams or waterways located on their farms and ranches. Texas law, not the Clean Water Act, principally governs surface water in the state. Whether a stream is a private resource or a public resource is determined by consulting a longstanding Texas law.  On the other hand, the Clean Water Act addresses water quality and, some fear that a change in the definition of which streams are regulated could increase responsibilities for landowners if their activities did not fit within a permitting exemption. The legal distinctions are worth understanding.

Texas has a long tradition of designating many streams as a public resource.  Texas law, going back to the late 1800s, states that a stream is navigable if it retains an average width 30 feet from its mouth up to its headwaters.  The measurement is of the streambed, not the area that is covered by flowing water.  The public may swim, boat, and fish in a navigable stream, but if the stream is non-navigable, a private landowner can fence it off and prohibit access.

Texas also must protect the water quality of all waterways that are considered “waters of the United States” under the Clean Water Act.  The Texas Commission on Environmental Quality (TCEQ) runs a permitting and enforcement program to ensure that pollutants do not enter “waters of the United States” in concentrations that will damage water quality.

Contaminated discharges could be from an industrial pipe, chemical spills, or storm water run-off. TCEQ’s water quality rules must be at least as protective as the EPA’s water quality rules, so the proposed change to EPA’s definition of “waters of the United States,” likely will lead to a comparable change in TCEQ’s rules. The proposal to change the definition is in the comment period right now.  Representatives of the agricultural community have expressed strong concerns that the proposed change would unnecessarily increase regulation for agricultural operations.  EPA and the Corps explained that this change does not affect longstanding Clean Water Act permitting exemptions for farming and ranching and that they have adopted an interpretive rule providing permitting exemptions for 56 conservation-related practices on farmland. You can expect that the agencies will be encouraged to make further changes to the proposal before it is finalized.

If you are interested in finding out more about the stream running through your land, call us.  We have helped landowners evaluate their stream status and advised them on the measures they should take to protect their property.

Call Now
Directions
X