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Proposed rule would determine which water bodies are protected under Clean Water Act

From the March 27, 2014 issue of Public Power Daily

Originally published March 27, 2014

By Robert Varela
Editorial Director
The Environmental Protection Agency and Army Corps of Engineers jointly proposed a "waters of the United States" rule for determining which streams, wetlands and other bodies of water are protected under the Clean Water Act. In keeping with an issue that has been before the Supreme Court twice in recent years (2001 and 2006), the proposed rule drew a mixed reaction along predictable lines. Notably, Senate Energy and Natural Resources Committee Chair Mary Landrieu, D-La., slammed the proposal and said she "will work with colleagues on both sides of the aisle to find a legislative solution to reverse this unfair, unwise and unnecessary decision."

The proposed rule would define "waters of the U.S." to mean: "traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate or the territorial seas; and adjacent waters, including adjacent wetlands."

In addition, other waters that don’t fit in any of the above categories could be determined to be "waters of the U.S." through "a case-specific showing that, either alone or in combination with similarly situated ‘other waters’ in the region, they have a ‘significant nexus’ to a traditional navigable water, interstate water, or the territorial seas." The rule would offer a definition of significant nexus and explain how similarly situated "other waters" in the region should be identified, but the agencies are soliciting comment on alternate approaches to determining whether "other waters" are similarly situated and have a "significant nexus" to a traditional navigable water, interstate water or the territorial seas.

The proposed rule is intended to provide "clarity to regulated entities as to whether individual water bodies are jurisdictional and discharges are subject to permitting," the agencies said. "The proposed rule does not protect any new types of waters that have not historically been covered under the Clean Water Act," EPA said—although Sen. Landrieu and others disputed that.

The proposed rule and additional information are posted on EPA's website. Comments on the proposed rule are due 90 days after its publication in theFederal Register. Comments, identified by Docket ID No. EPA–HQ– OW–2011–0880, can be submitted online at


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