Search

New “Waters of the United States” Definition

Posted on 4/3/2014 by Anthony R. Cardno

UPDATE (04/21/14): The EPA’s proposed “Waters of the United States” rule appeared in the Federal Register on April 21, 2014. View the proposed rule here.
 
In response to multiple court decisions over the past decade, the US Environmental Protection Agency (EPA) and Army Corps of Engineers (USACE) have issued a proposed new definition of “Waters of the United States” to be used consistently across all programs under the Clean Water Act. 
 
The proposed update to the “waters of the United States” definition has the potential to affect facilities’ compliance with all Clean Water Act programs, including Oil Discharge Notifications (40 CFR 110); Spill Prevention, Control, and Countermeasure Plans (40 CFR 112); NPDES Permitting and Stormwater Discharge Permitting (40 CFR 122); the “per-industry standards” (40 CFR 405 through 471); and the Dredge and Fill Permitting Program (33 CFR 323).
 
EPA’s proposal divides surface waters into three broad categories: jurisdictional waters, excluded waters, and other waters.
 
Jurisdictional Waters
 
Jurisdictional waters will be included “by rule,” meaning no additional analysis would be needed to determine whether they fall under the definition of “waters of the United States.” These include: 
 
  • Traditional navigable waters (per the 1899 Rivers and Harbors Act);
  • Interstate waters, including interstate wetlands;
  • Tributaries to traditional navigable waters, interstate waters, and the territorial sea; and
  • Surface waters adjacent to the above waters, including adjacent wetlands.
There is no change from the current definition of “waters of the United States” in reference to these bodies of water.
 
Excluded Waters
 
The proposed rule clarifies which waters are excluded from the definition of “waters of the United States.” Waters excluded from this definition will not be subject to CWA regulation and include:
 
  • Waste treatment systems (including treatment ponds or lagoons) meeting CWA requirements;
  • Prior converted cropland (as defined by Department of Agriculture regulations);
  • Ditches that are excavated wholly in uplands, used to drain only uplands, and have less than perennial flow;
  • Ditches that do not contribute flow to a jurisdictional water;
  • Various artificial water bodies created by excavating/diking dry land or upland; 
  • Gullies, rills, and non-wetland swales; and
  • Groundwater.
Other Waters
 
The biggest change to the existing definition is the proposed removal of the component that describes: 
 
“all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters: which are or could be used by interstate or foreign travelers for recreational or other purposes; from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or which are used or could be used for industrial purposes by industries in interstate commerce.” [40 CFR 122.2]
Under the proposed rule, these “other waters” would only be subject to CWA regulations on a case-specific basis provided they have a “significant nexus” with jurisdictional water.
 
The proposed rule also includes a regulatory definition of “significant nexus”: that the “other water,” either alone or in combination with other similarly situated waters in the region, “significantly affects the chemical, physical, or biological integrity” of a jurisdictional water. The proposed rule also states that for an effect to be considered significant, it must be more than speculative or insubstantial.
 
Public comments may be submitted up to 90 days from the date the proposed rule is published in the Federal Register. You can access the Federal eRulemaking Portal at http://www.regulations.gov. You may also e-mail comments to ow-docket@epa.gov. Include “EPA-HQ-OW-2011-0880″ in the subject line of the message. Until the proposed rule is published in the Federal Register, a pre-publication copy can be viewed here
 
Build Your EHS Knowledge and Skills 
 
The two day Complete Environmental Regulations Workshop is designed to help EHS managers better understand the complex requirements under EPA’s major permitting, reporting, and recordkeeping programs-including the Clean Water Act, Clean Air Act, CERCLA, EPCRA, TSCA, FIFRA, the Safe Drinking Water Act, and more. Presented nationwide, the workshop shows you how these programs affect your facility, and how to assess your site’s EHS responsibilities and communicate with management and your team. 

Tags: Act, Clean, EPA, new rules, Water

Find a Post

Compliance Archives

Lion - Quotes

Very good. I have always appreciated the way Lion Tech develops, presents and provides training and materials.

John Troy

Environmental Specialist

Lion is at the top of the industry in compliance training. Course content and structure are updated frequently to make annual re-training enjoyable. I like that Lion has experts that I can contact for 1 year after the training.

Caroline Froning

Plant Chemist

This is a very informative training compared to others. It covers everything I expect to learn and even a lot of new things.

Quatama Jackson

Waste Management Professional

Lion does a great job summarizing and communicating complicated EH&S-related regulations.

Michele Irmen

Sr. Environmental Engineer

Lion courses always set the bar for content, reference, and practical application. Membership and access to the experts is an added bonus.

John Brown, CSP

Director of Safety & Env Affairs

The price was reasonable, the time to complete the course was manageable, and the flexibility the online training allowed made it easy to complete.

Felicia Rutledge

Hazmat Shipping Professional

Lion courses are the standard to which all other workshops should strive for!

Brody Saleen

Registered Environmental Health Specialist

I tried other environmental training providers, but they were all sub-standard compared to Lion. I will not stray from Lion again!

Sara Sills

Environmental Specialist

These are the best classes I attend each year. I always take something away and implement improvements at my sites.

Kim Racine

EH&S Manager

Convenient; I can train when I want, where I want.

Barry Cook

Hazmat Shipping Professional

Download Our Latest Whitepaper

Shipping papers are a crucial part of safely shipping hazardous materials. See the top 5 mistakes shippers make on shipping papers, and how to avoid them.

Latest Whitepaper

By submitting your phone number, you agree to receive recurring marketing and training text messages. Consent to receive text messages is not required for any purchases. Text STOP at any time to cancel. Message and data rates may apply. View our Terms & Conditions and Privacy Policy.