EPA on September 8, 2014, released a question and answer (Q&A) document seeking to clarify the scope and purpose of its proposed “Waters of the U.S.” rule. Issued jointly by EPA and the U.S. Army Corps of Engineers (Corps) on April 21, 2014, the proposal is intended to clarify protection under the Clean Water Act (CWA) for streams and wetlands in the wake of a tandem of Supreme Court decisions. 79 Fed. Reg. 22187.

The Q&A document appears to be the latest attempt by EPA to blunt criticism on the rule from Republicans and certain business groups who contend that the proposal would significantly expand the EPA’s jurisdiction under the CWA. The document states that Supreme Court decisions in 2001 and 2006 changed the test for determining which waters upstream of navigable waters should be protected under the CWA. The basis for determining jurisdiction under the CWA changed from whether degraded water quality would have an effect on interstate commerce, to a more technical and scientific understanding of water features and their connection and importance to downstream traditional navigable waters.

In the proposed rule, EPA and the Corps are proposing to apply this principle, and in particular the “significant nexus” test, to clarify the that are vital to protect if the CWA is to be successful. The proposal also identifies waters that are not subject to the CWA. EPA states that it is not expanding the CWA. The proposed rule does not add protection to any new types of waters that have not historically been covered by the CWA, “nor does the rule in any way limit current regulatory and statutory exemptions and exclusions. Simply put, if an activity was exempted or excluded before this proposal, it will remain exempted or excluded. If you didn’t need a permit for a type of activity before, you won’t need one now,” EPA states in the Q&A document, which is available online.