Proposed Definition Changes to "Waters of the United States"

March 27, 2014
MGKF Special Alert

In a much anticipated announcement, the U.S. Environmental Protection Agency ("EPA") and the U.S. Army-Corps of Engineers ("Corps") yesterday released for public comment their proposed definitions of "waters of the United States" and related terms as set forth in the federal Clean Water Act. The proposal will soon be published in the Federal Register triggering a ninety-day public comment period, but a pre-publication copy can be found here.

These proposed regulations were developed by the EPA and the Corps in light of the U.S. Supreme Court's decisions in several recent wetland cases, in which the Court often provided a difficult to apply analysis of very fact-specific disputes concerning federal jurisdiction over water bodies.  However, the agencies were clear to state that the proposed definition of "waters of the United States" as set forth in the proposal apply to "all sections" of the Clean Water Act. As such, these proposed definitions will affect not only those needing federal Section 404 wetland permits from the Corps, but also may affect commercial and industrial facilities needing National Pollution Discharge Elimination System ("NPDES") permits for discharges to surface waters, as well as land developers needing NPDES permits to discharge stormwater from earth disturbance activities.

In addition to proposing a modified definition of the phrase "waters of the United States," the 370 page regulatory proposal also provides proposed definitions of the terms "neighboring," "riparian area," "floodplain," "tributary" and "significant nexus."

The agencies' stated purpose in proposing these definitions is to "enhance protection for the nation's public health and aquatic resources" while also providing the regulated community "predictability and consistency by increasing clarity as to the scope of 'waters of the United States' protected" under the Clean Water Act. In addition, the agencies claim that the regulatory proposal does not expand their Clean Water Act jurisdiction beyond those waters and wetlands that have been historically subject to federal protection and regulation. However, many in the regulated community believe otherwise, as the proposed regulations would impose federal requirements on smaller head water streams, as well as intermittent and ephemeral streams that flow only part of the year or only after a heavy rain.

MGKF is monitoring this regulatory package to determine the effects it might have on our clients. If you are interested in further information about these proposed regulations, or want assistance in preparing comments on the regulatory package, please contact Jonathan Rinde at 484-430-2325 or jrinde@mankogold.com.