EPA moves to clarify Clean Water Act scope

December 2013, Vol. 68 No. 12

In mid-September, the Environmental Protection Agency (EPA) and the Army Corps of Engineers drafted a proposed rule to clarify which bodies of water fall under the Clean Water Act (CWA) – a question that had been contested for years, with debate hinging on whether waters connecting to “navigable waters” fell under the agencies’ authority.

The proposed rule has been sent to the Office of Management and Budget which will coordinate a review of the draft by other federal agencies after which a formal publication of the proposed review would be released. A text of the draft has not been released by the EPA and Corps.
The Clean Water Act states that “waters of the United States” are subject to federal regulation. For construction companies, that means projects in certain wetlands and other areas that meet that definition require a Corps permit.

EPA also released a draft report from its Science Advisory Board that found that streams, regardless of their size or how frequently they flow, are connected to and have important effects on downstream waters. Wetlands and open waters in riparian areas and floodplains also meet the connectivity test. The rulemaking will presumably replace already-controversial 2011 EPA-Corps guidance on CWA jurisdiction. If accepted, it could bring millions of acres of wetlands under CWA protection and the end of arguing about jurisdiction one case at a time. Right now everything’s under review.