Posted March 24, 2015
On March 25, 2014, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) announced a proposed rule defining the scope of waters protected under the Clean Water Act (CWA).
The proposal revises regulations that have been in place for more than 25 years. Revisions are proposed in light of 2001 and 2006 Supreme Court rulings that interpreted the regulatory scope of the CWA more narrowly than previously, but created uncertainty about the precise effect of the Court’s decisions.
According to the agencies, the proposed rule revises the existing administrative definition of “waters of the United States” consistent with legal rulings and science concerning the interconnectedness of tributaries, wetlands, and other waters and effects of these connections on the chemical, physical, and biological integrity of downstream waters. Waters that are “jurisdictional” are subject to the multiple regulatory requirements of the CWA. Non- jurisdictional waters are not subject to those requirements.
This reportdescribes the proposed rule and includes a table comparing the existing regulatory language that defines “waters of the United States” with the proposed revisions. The proposal focuses on clarifying the regulatory status of waters located in isolated places in a landscape. It does not modify some categories of waters that currently are jurisdictional by rule (traditional navigable waters, interstate waters and wetlands, the territorial seas, and impoundments).
Congressional hearings have been held and are continuing in the 114th Congress. The FY2015 omnibus appropriations act (H.R. 83/P.L. 113-235) includes a provision directing withdrawal of a controversial related interpretive rule on agriculture exemptions, but it contains no restriction on the “waters of the U.S.” proposal. A bill to bar issuance of the rule has been introduced in the 114th Congress (H.R. 594). The House passed similar legislation in the 113th Congress (H.R. 5078). Other 113th Congress bills included S. 2496, H.R. 4923, H.R. 5071, and H.R. 5171.
For more information on the Clean Water Act, please visit the National Agricultural Law Center’s website here.
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