Clean Water Act Update: EPA and Army Corps Propose Significant Changes to the Definition of "Waters of the United States"
By Scott Castro
On March 25, 2014, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers announced the release of their proposed rule clarifying which waters will be governed by the federal water pollution laws. The draft rule - literally years in the making following several notable U.S. Supreme Court decisions - proposes significant changes to the definition of "waters of the United States," which determines which activities are subject to federal jurisdiction under the Clean Water Act. One key element of the proposed rule would automatically subject nearly every natural and artificial stream and wetland that is adjacent to or near a traditional navigable water, interstate water, or territorial sea to federal jurisdiction.
The agencies, led by the EPA, contend that the rulemaking is needed to clarify ambiguities left in the wake of the U.S. Supreme Court's rulings in U.S. v. Riverside Bayview, Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, and Rapanos v. U.S. While clarification may be needed, the proposed rule would effectively broaden, as a matter of law, federal jurisdiction over many types of streams and wetlands that are currently subject to a case-by-case assessment. Indeed, heavy criticism has been lodged at the automatic expansion of federal jurisdiction, including the potential for jurisdiction to be asserted over water bodies where a "nexus" to navigable waterways or other traditionally regulated bodies of water no longer exists.