EPA and Army Corps of Engineers Release "Q&A" Document for Proposed Rule Defining "Waters of the U.S."

Published Sep 11, 2014

This week the U.S. Environmental Protection Agency and Army Corps of Engineers released a “Questions and Answers” document in an effort to explain the agencies’ intent in proposing a new definition of “waters of the United States” for regulatory jurisdiction under the Clean Water Act.  The agencies respond to various questions and criticisms raised so far during the public comment period, including widespread concerns that the new definition will result in expanded regulatory jurisdiction. The agencies admit that the new rule would increase regulatory jurisdiction over “roughly 1,500 acres nationwide” compared to their current practices, but point out that “compared to the agencies’ existing regulations, however, the proposed rule reflects a substantial reduction in waters protected by the CWA as a consequence of recent decisions of the Supreme Court.”  This is because the Supreme Court has required a “significant nexus” to downstream navigable waters before the Clean Water Act can be applied to non-navigable tributaries, wetlands, and other waters.

The agencies suggest that their “thinking can be improved by hearing from . . . landowners, business people, farmers, scientists, energy companies, conservationists, state and local governments, and others who have valuable experience, clear perspectives, and important information.”  The proposal was published in the Federal Register on April 21, 2014 and the comment period has been extended until Monday, October 20, 2014.  For more information, contact Sarah Mack at mack@tmw-law.com.

  • To view the full Q&A document, click here.
  • To read the proposed rule, click here.