On April 21, 2014, the U.S. Environmental Protection Agency (EPA) and the Department of Defense (DOD) published a rule-making proposal to revise the definition of “waters of the United States,” a key statutory term used to prescribe the extent of federal jurisdiction to regulate a variety of activities under the Clean Water Act (CWA). 79 Fed. Reg. 22188. The current comment period for the proposal expires on October 20, 2014.
This closely watched and highly controversial proposal follows on more than forty years of CWA implementation, three landmark Supreme Court decisions and the issuance of shifting guidance documents by EPA and DOD over the course of the past several presidential administrations. Much of the current debate centers on how the agencies should interpret and apply the Court’s 4-1-4 decision in Rapanos v. United States, 547 U.S. 715 (2006), which generated considerable confusion as to the reach of federal jurisdiction under the CWA. The EPA/DOD proposal aims to clarify matters, and stakeholders have expressed serious doubts as to whether the proposal makes matters better or worse.
A good deal is at stake. Once finalized, the proposal will influence every regulatory program under the statute, from wastewater permitting under Section 402, to discharges of dredged or fill material under Section 404, to oil spill liability and prevention under Section 311, to State obligations to establish water quality standards under Section 303. Each of these programs applies only to “waters of the United States.” Many stakeholders believe the agencies’ proposal would greatly expand the universe of waters to be protected by these programs.
While only a page or so in length, the proposed definition is intricate, and it differs from the existing definition in several key respects. The agencies have defined “tributaries” quite broadly, to include ponds and even ditches in certain circumstances. They have proposed to exert jurisdiction over adjacent waters of all kinds, not merely wetlands as before, and have defined “adjacent” broadly. They have proposed to exert jurisdiction on a case-by-case basis over “other” waters, and have defined this category of waters using a “significant nexus” test put forth by a single Justice in a concurring opinion in Rapanos. And the agencies have proposed specific exclusions from the definition for certain ditches and water features that are used in particular ways.
Please join attorney James T. Banks, leader of the Environmental Practice at Hogan Lovells US LLP as he addresses:
- What regulated parties will need to understand this proposal
- What States and local governments will need to understand this proposal
- The potential need for regulated parties, States and local governments to provide their input to the agencies during the comment period
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