EPA and Army Corps Propose Expansive Regulation Identifying Jurisdictional Waters under the Clean Water Act


In response to the U.S. Supreme Court’s failure to establish definitive guidelines in a recent case, Rapanos v. U.S.,1 the U.S. EPA and the Army Corps of Engineers issued a proposed regulation2 redefining the “waters of the United States” and expanding the scope of jurisdictional wetlands under the federal Clean Water Act (CWA).

The proposed rule has potentially broad ranging impacts, as it applies to all CWA programs: the Section 402 NPDES program, Section 404 dredge and fill permitting programs, the Section 311 spill prevention program and Section 401 state certification programs. If adopted as proposed, the rule has the potential to impact virtually all industries, businesses, municipalities and landowners. The proposed rule would categorically define virtually all tributaries and waters which are “adjacent” to navigable bodies of water as jurisdictional “waters of the United States,” regardless of whether they flow into the navigable waters and irrespective of their size or the permanence of their flow. The broad scope of the rule could be applied to include ephemeral and man-made streams. Moreover, even if the body of water in question does not meet the designated criteria, EPA and the Army Corps have authority to consider it as jurisdictional using a case-by-case, “significant nexus” criteria.

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