The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (ACOE) have announced a new Nov. 14, 2014, deadline to submit comments to its much-debated redefinition of the term, “Waters of the United States,” which drives the scope of federal jurisdiction in numerous areas. The extension, several related legal and regulatory developments since this proposed rule was published in April, and now the results of the election make this an opportune time to reassess the impact this redefinition will have on oil and gas operations and activities, during a period of extraordinary domestic growth.

The Clean Water Act (CWA), enacted in 1972, grants broad authority to EPA and the ACOE to exercise regulatory jurisdiction over the navigable waters of the United States, which the CWA defines simply as “waters of the United States.” EPA and the ACOE have implemented this authority, which defines the scope and extent of their power, in many subsequent rulemakings. The latest proposal was prompted largely in response to the Supreme Court’s 2006 decision in Rapanos v. United States, which EPA and others have criticized for muddying an already complex area of the law. EPA and the ACOE have proposed to change and replace the present definition of “waters of the United States” that governs the scope and application of several sets of regulations—12 in all—that these agencies have promulgated since the CWA was enacted, and all 12 regulations affect the operations of the oil and gas industry. Hence, these new rules, if adopted as proposed, will have a significant impact on the operations of the oil and gas industry, which is engaged, on a daily basis, in the exploration, development, production, transportation, refining, distribution and marketing of petroleum and petroleum products throughout the nation.