Synopsis "EPA and the Army Corps' Proposed Rule to Define "Waters of the United States""
On March 25, 2014, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) jointly proposed a rule defining the scope of waters protected under the Clean Water Act (CWA). The proposal would revise regulations that have been in place for more than 25 years. Revisions are proposed in light of 2001 and 2006 Supreme Court rulings that interpreted the regulatory scope of the CWA more narrowly than previously, but created uncertainty about the precise effect of the Court's decisions. In 2011, EPA and the Corps proposed guidance on policies for determining CWA jurisdiction to replace guidance issued in 2003 and 2008; all were intended to lessen confusion over the Court's rulings. The 2011 proposed guidance was extremely controversial, with some contending that it represented an overreach beyond the agencies' statutory authority. Most environmental groups welcomed the proposed guidance, although some would have preferred a stronger document. The 2014 proposed rule would replace the existing guidance, which remains in effect because the 2011 proposed guidance was not finalized. According to the agencies, the proposed rule would revise the existing administrative definition of "waters of the United States" consistent with legal rulings and science concerning the interconnectedness of tributaries, wetlands, and other waters and effects of these connections on the chemical, physical, and biological integrity of downstream waters. Waters that are "jurisdictional" are subject to the multiple regulatory requirements of the CWA. Non-jurisdictional waters are not subject to those requirements. This report describes the proposed rule and includes a table comparing the existing regulatory language that defines "waters of the United States" with the proposed revisions. The proposal is particularly focused on clarifying the regulatory status of waters located in isolated places in a landscape. It does not modify some categories of waters that currently are jurisdictional by rule (traditional navigable waters, interstate waters and wetlands, the territorial seas, and impoundments). Beyond the categories of waters that would be categorically jurisdictional under the proposal are "other waters." The regulatory term "other waters" applies to wetlands and non-wetland waters such as prairie potholes that are not considered traditionally navigable or meet other of the proposed rule's jurisdictional definitions. Much of the controversy since the Supreme Court rulings has focused on the degree to which "other waters" are jurisdictional. According to the agencies' analyses, 17% of these "other waters" would be categorically jurisdictional under the proposal, but "other waters" that are not categorically jurisdictional would continue to need case-by-case evaluation. The rule also lists waters and features that would not be jurisdictional, such as prior converted cropland and certain ditches. It makes no change to existing statutory exclusions, such as CWA permit exemptions for normal farming and ranching activities.
