EPA Opens Comments on Waters of the US Language

Full Waters of the U.S. language under the Clean Water Act now posted to federal register for public comment

Published on: Apr 23, 2014

The Environmental Protection Agency and Army Corps of Engineers this week posted to the Federal Register its full proposed rule regarding the definition of the Waters of the United States under the Clean Water Act, initiating 90 days of public comment that will conclude July 21.

The rule would dictate what waters fall under the definition of waters of the U.S., therefore providing EPA and Corps jurisdiction to enforce regulations outlined in the Clean Water Act.

The proposed language was first announced nearly a month ago. At the time, EPA said the rule clarifies that most seasonal and rain-dependent streams are protected and wetlands near rivers and streams are protected under the CWA.

Full Waters of the U.S. language under the Clean Water Act now posted to federal register for public comment
Full Waters of the U.S. language under the Clean Water Act now posted to federal register for public comment

EPA said other types of waters may have "more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant."

While EPA suggested that stakeholders provide additional input during the comment period to determine more options for protecting waters with uncertain downstream connections, ag groups said the confusion regarding the CWA's jurisdiction will continue.

"The Supreme Court has said that [water] has to have a significant nexus to navigable waters to be jurisdictional," National Cattlemen's Beef Association environmental counsel Ashley McDonald said following the proposed rule's release.

Related: Tell EPA Impact of Water Rule Changes

"Of course EPA here has basically said that everything has a nexus and everything's going to be jurisdictional – which clearly shows us that they believe that there is no limit to federal jurisdiction," she said.

Also reviewing the proposal, the American Farm Bureau came up with a similar criticism.

"EPA and the Corps are now attempting to regulate virtually all water, something Congress has explicitly chosen not to allow and which two U.S. Supreme Court decisions have rejected," an AFBF Alert, released Tuesday, said.

AFBF, along with several other ag groups that are unhappy with the proposal, say the rules will impede normal farming activities, and some will need a CWA permit – approval of which the Corps or EPA has the right to deny.

"That’s why Clean Water Act jurisdiction over farmlands amounts to nothing less than federal veto power over a farmer’s ability to farm," AFBF President Bob Stallman said in comments following the proposal's release.

Several lawmakers also voiced dismay regarding the proposal, including Sens. Pat Roberts, Thad Cochran, Pat Toomey and Reps. Randy Neugebauer and Steve Stockman.

Meanwhile, the National Farmers Union offered a more positive review of the proposal, calling it "ag-friendly" due to the several exemptions it provides for conservation activities.

Find the rule on the Federal Register titled Definition of "Waters of the United States" Under the Clean Water Act.

For more on the issue, read commentary from attorney and Farm Futures blogger Gary Baise:
Water Police, Part One: EPA Coming to Your Farm?
Water Police, Part Two: EPA Proposal Won't Help Ag
Water Police, Part Three: EPA's Definition of 'Tributary'
Water Police, Part Four: EPA's Definition of 'Adjacent Waters'