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EPA Attempts to Expand its Reach and Re-Define Waters of the United States

After substantial time and review, the United States Environmental Protection Agency (EPA) and the United States Army Corps of Engineers proposed its long-anticipated rule-making establishing a new regulatory definition of the term “waters of the United States.” This definition, if adopted, would in many ways re-define the limits of federal jurisdiction over surface waters found in the United States.

The limits of federal jurisdiction over surface waters has been the subject of several controversial and narrowly decided cases before the United States Supreme Court in the last ten to twenty years, and is of vital importance to anyone party contemplating activities in and around land that contains or is located near any surface streams, wetlands, rivers, lakes, ponds, gullies, or virtually any other surface feature that holds or carries water. Activities which previously fell outside teh reach of the agencies will now be subject to federal jurisdiction, permitting, and potential enforcement.

The proposed rule, which has been anticipated since guidance documents were first issued by the agencies in the past couple of years in reaction to the Supreme Court decisions, reflects the agencies’ effort to define “waters of the United States” in a manner consistent with that guidance which controversially relies heavily and almost exclusively upon Supreme Court Justice Anthony Kennedy’s plurality opinion in Rapanos v. United States, 547 U.S. 715 (2006), [enhanced version available to subscribers], to extend EPA jurisdiction. The proposed rule, if adopted, would potentially extend the reach of federal jurisdiction to some surface waters that have not traditionally been considered “waters of the United States.”

Beyond the traditional bounds of “waters” such as traditional navigable waters, i.e., 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, and tributaries to such waters and adjacent wetlands, the proposed rule would provide for a category of waters that would be considered jurisdictional not by rule such as the waters described above which have been traditionally recognized as jurisdictional waters, but would now include other waters on a case-by-case basis.

These “other waters” would include what would once have been considered isolated and non-jurisdictional 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 “traditional navigable waters, interstate waters, and the territorial seas. Under the proposed rule, a “significant nexus” would exist when a water, including wetlands, either alone or in combination with other similarly situated waters in the region significantly affects the chemical, physical, or biological integrity of” a traditional navigable water, interstate water, or the territorial seas.

The proposed rule further contains expansive definitions of some of the key terms, including “adjacent” (and its imbedded term “neighboring”), and “tributary.”

The comment period for the proposed rule was recently extended to October 20, 2014.

The proposed rule can be accessed by clicking here and can be found at 79 Fed. Reg. 22188 [enhanced version available to subscribers].

Armando Benincasa concentrates his practice in the areas of energy law, environmental law, environmental litigation, administrative law, government affairs and lobbying. His practice consists of cases involving permitting and regulatory requirements for natural resources, including coal and oil and gas, solid waste, water resources, underground storage tanks, voluntary remediation, and the drafting of rules and statutes related to the environment.

» See more articles by Armando F. Benincasa
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