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Tuesday, May 21, 2024 | Back issues
Courthouse News Service Courthouse News Service

Agencies Propose Clearer U.S. Waters Definition

WASHINGTON (CN) - Due to confusion from three U.S. Supreme Court decisions, two federal agencies have proposed a new definition for the "waters of the United States." The proposed definition is meant to clarify stream and wetland protections, and has been jointly proposed by the Environmental Protection Agency and the U.S. Army Corps of Engineers under the Clean Water Act.

Determining wetland protections became increasingly complex following the Supreme Court decisions, which spanned from 1985 to 2006. The 1985 decision interpreted the act broadly, recognizing that wetlands near navigable waters were part of the same aquatic ecosystem. The 2001 opinion held that federal protections for isolated non-navigable ponds were not warranted because they did not meet the "navigable waters" criteria. The 2006 decision, which involved two consolidated cases involving wetlands near non-navigable tributaries, defined "waters of the United States" as "relatively permanent, standing or continuously flowing bodies of water. . . that are connected to traditional navigable waters, as well as wetlands with a continuous surface connection to such relatively permanent water bodies," according to the action.

The Supreme Court decisions resulted in case-by-case evaluations of water jurisdictions, which created inefficient implementation of the act's requirements. Under existing guidance, the EPA did not pursue a serious violation of crude oil discharged into an intermittent stream in Titus County Texas because proving the stream was protected under the Clean Water Act was too complicated, according to the EPA's website. Residents of Titus County get 50 percent of their drinking water from such streams.

For nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups, and the public asked the agencies to provide clarity. The proposed definition would apply to all Clean Water Act programs, but does not protect any new types of waters not historically covered under the act. It is consistent with the Supreme Court's more narrow reading of the act's jurisdiction. The aim of the proposal is to enhance protection for the nation's public health and aquatic resources, and increase program predictability and consistency by increasing clarity as to the scope of the "waters of the United States" protected under the Clean Water Act, the EPA said in its press release.

Specifically, the proposed rule clarifies that waters to be protected would include most seasonal and rain-dependent streams, and wetlands near streams and rivers. The agency requests information on options to protect waters that have uncertain connections with downstream water to avoid case-by-case analysis of such waters.

"The health of rivers, lakes, bays, and coastal waters depend on the streams and wetlands where they begin. Streams and wetlands provide many benefits to communities - they trap floodwaters, recharge groundwater supplies, remove pollution, and provide habitat for fish and wildlife. They are also economic drivers because of their role in fishing, hunting, agriculture, recreation, energy, and manufacturing," the EPA's press release states.

"This is good news for boaters, anglers, swimmers, and families who rely on clean drinking water. EPA took an important step to finally rescue these waters from legal limbo. Even though these are common-sense protections, the polluters are sure to attack them. People who care about clean water need to make their voices heard in the comment period," Peter Lehner of the Natural Resources Defense Council was quoted as saying in the group's press release.

Public comments are due by July 21.

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