Federal agencies release proposed rule defining waters of the United States

The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (COE) recently released a proposed rule to clarify the scope of agency jurisdiction under the Clean Water Act (CWA) over “navigable waters” broadly defined in the Act as “waters of the United States.” The proposed rule was published in the April 21, 2014 issue of the Federal Register (79 FR 22188 – 22274; Docket ID No. EPA–HQ–OW–2011–0880).

The agencies have said that the proposed rule is intended to clarify their purview in light of several U.S. Supreme Court decisions between 1985 and 2006 that addressed the scope of federal jurisdiction under the CWA. These decisions confirmed that federal jurisdiction has limits but included conflicting guidance regarding how the limits of waters of the United States should be defined.

According to the agencies, the proposed rule “would increase CWA program predictability and consistency by increasing clarity as to the scope of ‘waters of the United States’ protected under the Act.” The agencies have indicated that the proposed rule would not expand their existing jurisdiction over waters in the US.

However, this view is heavily debated and a number of interests have asserted that the rule, as proposed, would in fact greatly expand the number of waters that would be considered waters of the US and thus subject to protection under the CWA.

The proposed rule asserts jurisdiction over the following water categories: (1) waters susceptible to use in commerce, (2) interstate waters, (3) territorial seas, (4) impoundments of the previous categories and of tributaries, (5) tributariesof all previous categories, and (6) waters adjacent to waters in the previous categories.

“Other waters” that do not fit into these categories could also be determined to be “waters of the United States” based on a case-specific analysis if it can be shown that “either alone or in combination with similarly situated ‘other waters’ in the region, they have a ‘significant nexus’ to a traditional navigable water, interstate water, or the territorial seas.” The proposed rule also includes new definitions for terms such as “tributary,” “neighboring,” “riparian area,” “floodplain,” and “significant nexus.”

The agencies are inviting submission of public comment by July 21, 2014. They express particular interest in comments, scientific and technical data, and other information that would further clarify which “other waters” should be considered similarly situated for purposes of a case-specific “significant nexus” determination. NCASI will be reviewing technical aspects of the proposed rule.


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