Yesterday the United States Environmental Protection Agency and
the Corps of Engineers released a pre-publication, final version of
a new rule defining the scope of "waters of the United
States" under the Clean Water Act. This definition is key to
the agencies' jurisdiction under the National Pollutant
Discharge Elimination System, Clean Water Act Section 404
permitting for discharge of dredge and fill materials, Oil
Pollution Act coverage, and other federal water quality permitting,
notification, and liability programs. The rule replaces 2008
guidance and 2011 draft guidance (later withdrawn) issued by the
agencies in the aftermath of the U.S. Supreme Court's plurality
opinion in Rapanos v. United States and Carabell v. United States,
547 U.S. 715 (2006), in which Justice Kennedy articulated a
"significant nexus" test for defining waters of the U.S.
The rule will become effective sixty days after publication in the
Federal Register. EPA and the Corps say the rule expands the scope
of waters covered by these laws by only about 3%, but industry and
development interests claim the expansion is much greater.
Industry, development, and environmental interests have all
threatened to seek judicial review of the new rule. EPA has posted
information on the rule, including the text
of the final rule.
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