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EPA Proposes Changes to Definition of “Waters of the United States”

For those of you involved in wetlands and water permitting, the “waters of the United States” is important because it defines what water bodies are subject to Corps of Engineers and EPA permitting.     

"The agencies propose to define ‘‘waters of the United States’’ in section (a) of the proposed rule for all sections of the CWA to mean: Traditional navigable waters; interstate waters, including interstate wetlands; the territorial seas; impoundments of  traditional navigable waters, interstate waters, including interstate wetlands, the territorial seas, and tributaries, as defined, of such waters; tributaries, as defined, of traditional navigable waters, interstate waters, or the territorial seas; and adjacent waters, including adjacent wetlands. Waters in these categories would be jurisdictional ‘‘waters of the United States’’ by rule—no additional analysis would be required."

 At first glance, this doesn’t look too different from the current regulation.  However, the proposal appears to define “adjacent” waters to include all waters within a floodplain.  This is an extremely broad expansion of current regulatory authority on the Federal level, potentially affecting construction and development within a floodplain, not just for wastewater and stormwater discharges and wetlands impacts.  The possibility exists that all activities that could affect the quality of the receiving streams  will be subject to Federal permitting.  

Comments are open on the proposed rule until July 21, 2014. 

For more information click here.