Time to Comment on New Definition of “Waters of the United States” Extended Through October 20, 2014

In response to requests for an extension, the U.S. Environmental Protection Agency and the United States Army Corps of Engineers have extended the comment period for a revision to the definition of “waters of the United States” under the Clean Water Act that was published on April 21, 2014 (79 FR 22188). 

The new definition has been proposed in response to several controversial U.S. Supreme Court decisions that have created uncertainty as to the extent of federal jurisdiction over surface waters in the United States.  The agencies’ proposed rule attempts to create a “bright line” definition of “waters of the United States” by crafting two tests for federal jurisdiction:  (a) waters that are deemed jurisdictional by rule; and (b) other water bodies that on a case-by-case basis meet the “significant nexus” test.

Under the first test, the proposed definition would automatically authorize federal jurisdiction over six categories of waters:

1. traditional navigable waters;
2. interstate waters (including interstate wetlands);
3. the territorial seas;
4. impoundments of waters in (1) - (3);
5. all “tributaries” of waters in (1) - (4); and
6. waters and wetlands “adjacent” to waters in (1) - (5).

If a water body does not fall within one of these six categories, it could still be deemed to fall under Clean Water Act jurisdiction on a case-by-case basis under the second test if it alone, or in combination with other similarly situated waters (including wetlands) located in the same region, is determined to have a significant nexus to a traditional navigable water, an interstate water, or the territorial seas.

The proposed definition has already drawn criticism as significantly extending the reach of federal jurisdiction under the Clean Water Act.  With the newly granted extension, any public comments to the proposal must be submitted on or before October 20, 2014.