Proposed Rule Defining Waters of the United States

Posted Monday, April 21st, 2014

As previously reported here, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers (collectively, the agencies) have jointly developed rules re-defining “water of the United States” (WOTUS rule) for purposes of determining federal jurisdiction under all programs of the Clean Water Act (CWA).  On April 21, 2014, the agencies published the proposed WOTUS rule in the Federal Register.  79 Fed. Reg. 22,187Comments will be accepted for a period of 90 days from the date of publication, until July 21.   The comment docket can be accessed here.

The proposed rule creates six categories of per se jurisdictional waters, codifies as exempt certain waters routinely found in practice to be non-jurisdictional (including upland cut, non-perennial ditches draining only uplands), and adds six definitions: (1) adjacent, (2) neighboring, (3) riparian area, (4) floodplain, (5) tributary, and (6) significant nexus.  The definitions are extremely broad and serve to sweep a large number of waters into the agencies’ ambit, subjecting them to the requirements of the CWA.

On a related note, on April 21, 2014, the agencies also published a Notice of Availability and Public Comment to announce the availability of an interpretive rule regarding the applicability of the exemption from permitting provided under section 404(f)(1)(A) of the CWA for discharges of dredged and/or fill material associated with certain agricultural conservation practices based on the Natural Resources Conservation Service (NRCS) conservation practice standards that are designed and implemented to protect and enhance water quality.  The interpretive rule was effective on April 03, 2014, and comments on the final interpretive rule will be accepted until June 5, 2014.  The agencies have entered into a memorandum of understanding (MOU) with the U.S. Department of Agriculture identifying 53 NRCS agricultural conservation practice standards as definitively falling under exemption.  It is unclear what the effect this MOU will have on other agricultural best management practices that have not been specifically identified as exempt.

For more information contact Winston Borkowski or Susan Stephens.

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