On March 24, the Environmental Protection Agency (EPA) proposed a new definition of “waters of the United States” as applied in the Clean Water Act (CWA).

The definition of “waters of the United States” currently means:

(a) All waters which are currently used, were used in the   past, or may be susceptible to use in interstate or foreign commerce,   including all waters which are subject to the ebb and flow of the tide;

(b) All interstate waters, including interstate “wetlands”;

(c) All other waters such as interstate lakes, rivers, streams   (including intermittent streams), mudflats, sandflats, wetlands, sloughs,   prairie potholes, wet meadows, playa lakes, or natural ponds the use,   degradation, or destruction of which would affect or could affect interstate   or foreign commerce including any such waters:

(1) Which are or could be used by interstate or foreign travelers for recreational or other purposes;

(2) From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(3) Which are used or could be used for industrial purposes by industries in interstate commerce;

(d) All impoundments of waters otherwise defined as waters   of the United States under this definition;

(e) Tributaries of waters identified in paragraphs (a) through   (d) of this definition;

(f) The territorial sea; and

(g) Wetlands adjacent to waters (other than waters that   are themselves wetlands) identified in paragraphs (a) through (f) of this   definition.

40 CFR 122.2

Under the EPA’s proposed new definition, “waters of the United States” includes:

• All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

• All interstate waters, including interstate wetlands;

• The territorial seas;

• All impoundments of a traditional navigable water, interstate water, the territorial seas or a tributary;

• All tributaries of a traditional navigable water, interstate water, the territorial seas or impoundment;

• All waters, including wetlands, adjacent to a traditional navigable water, interstate water, the territorial seas, impoundment or tributary; and

• On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a traditional navigable water, interstate water or the territorial seas.

Summary of EPA’s Proposed Rule. 

Several years ago, Supreme Court Rulings in U.S. v. Riverside Bayview, Rapanos v. United States, and Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, which effectively muddied the waters on what is and what is not “waters of the United States”.  The EPA has proposed the above change in response to those decision, which the EPA believes will “enhance protection for the nation’s public health and aquatic resources, and increase CWA program predictability and consistency by increasing clarity as to the scope of “waters of the United States” protected under the Act.” Summary of EPA’s Proposed Rule. 

Critics of the proposed rule have been expecting the change and fear the new definition will greatly expand the government’s jurisdiction over private land including seasonal ponds, streams and ditches.  EPA land grab? Agency claims authority over more streams, wetlands. 

Jurisdictional clarification or jurisdictional expansion?  The EPA is looking for comments which you can make at https://www.regulations.gov or via email at ow-docket@epa.gov

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