Just what are “Waters of the United States?” At first glance, it might seem intuitive, but since passage of the Clean Water Act (CWA), this definition has become more and more difficult to pin down. Why does this matter? Because it determines what water bodies are and are not regulated under the CWA, which has implications for property development, industrial activity, and recreational activity, to name just a few things.
To provide clarity, The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) have released a proposed rule on the scope of and definition of Waters of the U.S. The proposed rule may have significant regulatory consequences for some activities because it brings “ephemeral streams” into the definition of regulated waters. Meanwhile, it also creates new areas of uncertainty by excluding other natural features that may be considered “ephemeral” from the definition. And finally, it modifies the definition of adjacent waters, which could create confusion for some.
For a more complete explanation of the proposed rule, read this brief whitepaper prepared by our Ecological Services Team. It covers the major changes, including the types of water bodies that are now regulated as well as the likely new areas of confusion: Proposed Clean Water Act Changes: Implications for Land, Development and Permitting (PDF).
Public comment for these changes has been extended to October 20, 2014. Click here for the full text of the proposed rule changes.