New “Waters of the United States” Definition
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.
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