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 report
describes 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.
