The Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) formally issued a Proposed Rule today designed to clarify their regulatory jurisdiction under the Clean Water Act. The Proposed Rule will potentially expand EPA and Corps jurisdiction to reach a far greater number of lands, drainage systems and development projects than are currently regulated under the Clean Water Act. Comments on the Proposed Rule are due by July 21 and can be filed electronically here. Best Best & Krieger is assembling a coalition of local governments and special districts to offer operational insights on the Proposed Rule. See our previous legal alert on the Proposed Rule.

An expansion of Clean Water Act jurisdiction would make an increased number of projects and activities subject to the Clean Water Act’s permitting requirements. These permitting requirements apply to discharges of pollutants as well as fill material and potentially impose discharge limitations, mitigation requirements and other limitations where they previously did not apply. Additionally, because Clean Water Act permits are enforceable by members of the public, any person or group who can establish standing can file a lawsuit to enforce the Act. An expansion of Clean Water Act jurisdiction will therefore result in an increased risk of litigation for those who find themselves subject to the Act.

In the Proposed Rule, the agencies are seeking comment on how they should evaluate Clean Water Act application to “other waters” and whether waters in several “ecoregions” should be evaluated individually or systemically.