U.S. Army Corps of Engineers and EPA Rule Proposal Attempts to Broaden Federal Water Jurisdiction

On March 25, 2014, the U.S. Environmental Protection Agency and the Army Corps of Engineers jointly released a proposed rule to define the waters that fall under the jurisdiction of the Clean Water Act. While the agencies claim that the proposed rule is intended to clarify the CWA’s reach, the proposed rule would significantly expand the definition of “waters of the United States.” In doing so, the proposed rule would have a major impact on businesses that develop or change land, including oil and gas companies, pipeline operators, developers, and many others. Moreover, projects that already require a permit would likely have to purchase additional mitigation credits, and projects that do not currently require a permit would require one.

Under the proposed rule, all tributaries, ephemeral and intermittent streams, adjacent waters, and adjacent wetlands would be categorically subject to federal oversight, with no additional analysis required. To establish this broad jurisdictional delineation, the proposed rule relies upon general scientific evidence of the connectivity between streams and wetlands with downstream waters and certain parts of Supreme Court jurisprudence.

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