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Environmental Protection Agency and U.S. Army Corps of Engineers Proposed Rule Defining “Waters of the United States” Under the Clean Water Act
OverviewOn April 21, 2014, the United States Army Corps of Engineers and the Environmental Protection Agency (collectively the “Agencies”) released a proposed rule to define the scope of waters protected under the Clean Water Act (“CWA”). The definition of “waters of the United States” (“WOUS”) determines the applicability of the CWA’s permitting regime -- including Section 402 (National Pollutant Discharge Elimination System permit program), Section 404 (dredge and fill permit program), Section 311 (oil and hazardous substance spills), and Section 401 (water quality certification). The Agencies claim that the purpose of the proposed rule is to clarify the definition of WOUS in light of the Supreme Court’s decisions in United States v. Riverside Bayview,Rapanos v. United States, and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (SWANCC), the latter two of which narrowed the scope of WOUS and the Agencies’ CWA jurisdiction.
However, the proposed rule, if adopted, would significantly expand the geographic scope of the Agencies’ CWA permitting jurisdiction.
The Proposed Rule
The proposed rule would not affect the Agencies’ jurisdiction over navigable waters, interstate waters, or territorial seas. Purportedly, the Agencies drafted the proposed rule with the primary intent of clarifying their jurisdiction over three other categories of water: 1) tributaries, 2) adjacent waters/wetlands, and 3) “other waters.” Under the proposed rule, tributaries and adjacent waters/wetlands would be jurisdictional, requiring no additional analysis. “Other waters” would require a case-by-case analysis to determine whether they constitute WOUS.
The proposed rule defines a CWA “tributary” as 1) a water physically characterized, by “a bed and banks and ordinary high water mark…which contributes flow, either directly or through another water to [a navigable water, interstate water, territorial sea, an impoundment of these waters, or an impoundment of a tributary],” and 2) “wetlands, lakes, and ponds are tributaries (even if they lack a bed and banks or ordinary high water mark) if they contribute flow, either directly or through another water to a [navigable water, interstate water, or territorial sea].”
In addition to the above definition, and perhaps most notably, the proposed rule purports to “clarify” that a tributary can be natural, man-made, or man-altered; can be discontinuous; and can be perennial, intermittent, or ephemeral, since its flow need not be permanent.
The proposed rule would expand the currently jurisdictional “adjacent wetlands” to a broader category of WOUS designated as “adjacent waters.”
EPA Draft Connectivity Report:
Implications of the Proposed Rule:
If the Agencies proceed to adopt the rule as it is currently drafted, their CWA regulatory jurisdiction over tributaries and adjacent waters will be expanded. Although the EPA maintains that the new rule does not broaden historical CWA coverage, the Congressional Research Service disagreed, finding that the rule will expand CWA jurisdiction given that the language in the proposed rule is more inclusive than current guidelines.
- Federal eRulemaking Portal: http://www.regulations.gov.
- Email: firstname.lastname@example.org. Include EPA-HQ-OW-2011-0880 in the subject line of the message.
- Mail: Send the original and three copies of your comments to: Water Docket, Environmental Protection Agency, Mail Code 2822T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, Attention: Docket ID No. EPA-HQ-OW-2011-0880.
 474 U.S. 121 (1985).
 547 U.S. 715 (2006).
 531 U.S. 159 (2001).
 EPA and the U.S. Army Corps’ Proposed Rule to Define “Waters of the United States,” Congressional Research Service (March 27, 2014) at 5.
 Definition of “Waters of the United States” Under the Clean Water Act, 79 Fed Reg. 22188, 22189 (proposed April 21, 2014).
 Id. at 22201.
 Id. at 22202.
 33 USC 1344(g)(1).
 79 Fed Reg. 22188 at 22260.
 Id. at 22189, 22206-22207.
 Id. at 22210.
 Id. at 22263.
 Id. at 22192.
 Id. at 22268.
 Updates regarding the current status of the Science Advisory Board Panel for the Review of the EPA Water Body Connectivity Report are available at http://yosemite.epa.gov/sab/sabproduct.nsf/c91996cd39a82f648525742400690127/7724357376745f48852579e60043e88c!OpenDocument.
 Environmental Protection Agency Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (September 2013 External Review Draft) at 1-3. See also 79 Fed Reg. 22188 at 22223.
 Id. at 1-3, 1-4.
 “[T]he scope of the regulatory jurisdiction of the CWA in this proposed rule is narrower than that under existing regulations.” 79 Fed Reg. 22188 at 22192.
 EPA and the Army Corps’ Proposed Rule to Define “Waters of the United States,” Congressional Research Service (March 27, 2014) at 5.
 See House Committee on Science, Space, and Technology, Full Committee Hearing - Navigating the Clean Water Act: Is Water Wet? (July 9, 2014), archived Webcast available at:http://science.house.gov/hearing/full-committee-hearing-navigating-clean-water-act-water-wet.
 Definition of ‘‘Waters of the United States’’ Under the Clean Water Act; Extension of Comment Period, 79 Fed Reg. 35712 (proposed June 24, 2014).