November 01, 2014

Future Regulation of “Waters of the United States”

Patrick J. Paul and Maribeth M. Klein

Last spring, the US Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) jointly proposed a rulemaking to amend the definition of “waters of the United States” under the federal Clean Water Act (CWA) and substantially enhance their related enforcement roles. The amended “waters of the United States” definition would greatly expand the jurisdiction of EPA and the Corps. With support from a September 2013 draft EPA report on the “connectivity” of streams and wetlands to downstream waters (the draft “Connectivity Report”), the agencies’ proposed rule would expand the types of smaller and more isolated waters that categorically would be deemed jurisdictional. On other waters, EPA nevertheless would retain the authority to determine, on a case-by-case basis, that the requisite “nexus” exists with respect to the particular water body considered in combination with other regional and similarly situated waters.

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