Swimming in "Other Waters" - Does EPA's New Proposed Rule on Waters of the United States Provide Pre

March 26, 2014 by Kristina M. Tridico, Partner
The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) are publishing for public comment a proposed rule defining the scope of waters protected under the Clean Water Act (CWA) in light of recent Supreme Court cases that muddied the waters, literally and figuratively, about what is a waterbody under the CWA.

In light of #worldwaterday and other consumer conscious-raising events, agriculture, industry and municipalities are increasingly cautious about what waters are under regulatory jurisdiction, and how they should be treating those waters.  EPA says that these Supreme Court decisions resulted in the agencies evaluating the jurisdiction of waters on a case-specific basis far more frequently than is best for clear and efficient implementation of the CWA.
Since the pre-Federal Register launch of the proposed rule by EPA March 25th, social media has been buzzing that this rule will provide the intended level of certainly and predictability.  The National Farmers Union, Ducks Unlimited, craft brewers and others agreed with EPA's position on clarity in issued statements. The National Farmers Union noted the draft rule clarifies CWA jurisdiction, maintains existing agricultural exemptions and adds new exemptions, and encourages enrollment in U.S. Department of Agriculture conservation programs.  "In addition, farmers and ranchers who are voluntarily enacting certain conservation practices on their farms will be exempt from Clean Water Act Section 404 permitting requirements."
Commentators quickly countered, noting that EPA's proposed rule will give the federal government regulatory authority over tens of millions of acres of wetlands and tens of thousands of miles of streams and will lead to stricter pollution controls on some of these areas in its aim to resolve the long-running legal battle over how to apply the CWA to the nation's intermittent and ephemeral streams and wetlands.
EPA acknowledges that red tape is not good for business. The question for business is whether muddy waters are better than red tape.  While the proposed rule retains a proposed definition of "waters of the United States" in section (a) of the proposed rule for all sections of the CWA, the agencies propose that "other waters" (those not fitting in any of the categories in the definition), could be determined to be "waters of the United States" through a case-specific showing.  The agencies acknowledged that there may be more than one way to determine which waters are jurisdictional as "other waters."  This is important because excluded waterbodies will need to meet all of the listed criteria, and the end result, EPA noted, is likely to be that the determination through data, science, the CWA and caselaw.
The proposal will be subject to a 90-day comment period slated to begin in a few weeks.  The attorneys of Ice Miller LLP's environmental practice group can discuss the impact of the rule on your business and assist you in developing and submitting questions and comments to the proposed rulemaking. Please contact Kristina M. Tridico, kristina.tridico@icemiller.com.

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