EPA's 'Waters of the US' Proposal Aims to Clarify Limits of Water Oversight

National Cattlemen's Beef Association says expanded waters of the U.S. definition could cause problems for agricultural producers

Published on: Mar 26, 2014

In a joint announcement Tuesday, the U.S. Environmental Protection Agency and U.S. Army Corps of Engineers released a proposed rule that would clarify the definition of waters of the U.S. under the Clean Water Act.

The proposed rule release kicks off a 90-day "robust outreach effort" that will include discussions with stakeholders to determine a final rule, EPA said.

According to EPA, the proposed rule does not protect any new types of waters that have not historically been covered under the Clean Water Act and is consistent with the Supreme Court's more narrow reading of Clean Water Act jurisdiction.

National Cattlemens Beef Association says expanded water definition could cause problems for agricultural producers
National Cattlemen's Beef Association says expanded water definition could cause problems for agricultural producers

Specifically, the proposed rule clarifies that under the Clean Water Act, most seasonal and rain-dependent streams are protected; Wetlands near rivers and streams are protected; and 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."

Related: Clean Water Act: Another Bull's-eye on Farmland Owners

In the request for comment, EPA says it is seeking more input on options to protect similarly situated waters in certain geographic areas or adding to the categories of waters protected without case-specific analysis.

'A step too far'
The rule comes after more than a decade of discussion among municipalities, agriculture and other industries regarding Clean Water Act protection for streams and wetlands. Confusion was underscored by a Supreme Court decision that suggested limits on federal jurisdiction of water, says National Cattlemen's Beef Association environmental counsel Ashley McDonald.

"The Supreme Court has said that [water] has to have a significant nexus to navigable waters to be jurisdictional," McDonald said Tuesday. "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."