Shale Energy Law Blog
EPA and Army Corps Release Proposed Rule on Clean Water Act Jurisdiction
March 26, 2014
On March 25, 2014, U.S. EPA and the U.S. Army Corps of Engineers released the pre-publication version of a proposed rule intended to make the process of identifying “waters of the United States” covered under the Clean Water Act less complicated and more efficient. Decisions of the U.S. Supreme Court in recent years which addressed the regulatory definition of “waters of the United States” created confusion and uncertainty for permitting programs under the Clean Water Act. The proposed rule attempts to clarify Clean Water Act jurisdictional issues in light of these cases. According to EPA’s webpage regarding the proposed rule, it does not cover any new water bodies not historically protected under the Clean Water Act and clarifies protection for streams and wetlands. Notably, the proposed rule would adopt the “significant nexus” standard enunciated in Justice Kennedy’s concurring opinion in Rapanos v. United States for determining whether “other waters,” which do not fit within the specific categories of waters that are jurisdictional by rule, would be subject to the Clean Water Act. Public comments on the proposed rule will be accepted for 90 days upon publication in the Federal Register.