The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers have released a joint draft rule that would expand the types of water bodies under their jurisdiction. Currently, the agencies’ jurisdiction is restricted to “navigable waters of the U.S.” The rule would expand that jurisdiction to include wetlands, ditches, tributaries, and other water bodies if they meet certain seasonal and geographical standards, even if they have no physical nexus to federal navigable waters.
The rule is a response to the controversy surrounding a proposed 2011 guidance document advising agency field staff on how to determine jurisdiction under the Clean Water Act. Many interested stakeholders, including RCRC, saw the guidance as a de facto rule that would have expanded the federal definition of “waters of the U.S.” without going through a proper public rulemaking process. The guidance was withdrawn, with the agencies now seeking an official rule to expand their authority. The proposed rule will be open for public comment for 90 days following publication in the Federal Register.
The proposed rule and all related documents can be viewed on the EPA website, accessed here.
For additional information, please contact RCRC Regulatory Affairs Advocate Staci Heaton at 916.447.4806 or sheaton@rcrcnet.org.