The U. S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) went on a “listening tour” in late August, asking stakeholders for input as they embarked on the eighth attempt to resolve by regulation the reach of the Federal Clean Water Act under the shop-worn rubric “Waters of the United States”.

EPA and the Corps plan not one but two sets of regulations. The first will be a “foundational rule” to restore the regulatory definition of Waters of the United States to what it was prior to the Obama Administration EPA rule with “updates” to reflect what EPA and the Corps think the Supreme Court has resolved in the meantime. The second set of regulations would “refine this regulatory foundation and establish an updated and durable” definition of Waters of the United States. 

The agencies claim they will conclude the activation of this troublesome regulation between now and January 2024. That, they say will include the effect of the certain multi-district litigation over the first “foundational rule”.

In the meantime, trade journal Inside EPA reports a few Republican Senators are already complaining about the EPA and Corps rule making that hasn’t even begun yet. They’ve filed legislation that would make the Trump Administration EPA rule the law of the land…not likely to go anywhere in a Democratcontrolled Congress.

Definition of Waters of the United States

There is already a cumbersome definition of this controversial measure, buried in Title 40 Code of Federal Regulations (CFR), Section (§) 122.2, which declares WOUS includes:

(a) all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;

(b) all interstate waters, including interstate wetlands;

(c) all other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sand flats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds that the use, degradation, or destruction of which would affect or could affect interstate or foreign commerce including any such waters:

(1) which are or could be used by interstate or foreign travelers for recreational or other purposes; 

(2) from which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or

(3) which are used or could be used for industrial purposes by industries in interstate commerce; 

(d) all impoundments of waters otherwise defined as waters of the United States under this definition;

(e) tributaries of waters identified in paragraphs (a) through

(d) of this definition; 

(f) the territorial sea; and

(g) wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) through (f) of this definition.

Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA are not waters of the United States. This exclusion applies only to manmade bodies of water which neither were originally created in waters of the United States (such as disposal area in wetlands) nor resulted from the impoundment of waters of the United States. 

Waters of the United States do not include prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.

In some ways this new federal effort may turn out to be beneficial as national rules supersede state regulations. California’s State Water Resources Control Board is constantly tinkering with this regulation and at best they could decide to follow the Fed’s lead. At worst they will have to go back through their own rules and make sure they at least comply with the EPA/Corps rules which could slow them up a bit.