The proposed rule to revise the definition of “waters of the United States” under the federal Clean Water Act, which originally was announced on March 25, 2014 by the United States Environmental Protection Agency (EPA) and United States Army Corps of Engineers (Corps), formally was published in the Federal Register on Monday, April 21, 2014. (Federal Register Vol. 79, No. 76, Monday, April 21, 2014, at pages 22187-22274.) The text of the proposed rule is substantively identical to the March 25 pre-release version.
The agencies have opened a three-month public comment period on the proposed rule. Comments on the proposed rule are due on or before July 21, 2014, and may be submitted through the Federal eRulemaking Portal, by email, by mail, or by hand delivery. Comments should be identified as submitted pursuant to Docket ID No. EPA-HQ-OW-2011-0880.
If finalized in its current form, the proposed rule would be the most sweeping change to Federal Clean Water Act jurisdiction in a generation, and is a significant expansion of that jurisdiction as compared to the current regulatory regime. The agencies continue to emphasize that the proposed rule is intended to clear up alleged confusion as to the jurisdictional reach of the Clean Water Act which they claim was created by the Supreme Court’s decisions in U.S. v. Riverside Bayview Homes, 474 U.S. 121 (1985), Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), and Rapanos v. U.S., 547 U.S. 715 (2006).
Latham & Watkins will continue to monitor EPA’s and the Corps’ outreach on the proposed rule and will update this blog and the previously published Client Alert as developments warrant.