EPA Finalizes “Waters of the US” Rule

Earlier today, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) finalized a much anticipated rule that would redefine “Waters of the United States” and vastly expand the two agencies’ regulatory authority over the nation’s water resources. EPA and the Corps proposed the rule in April 2014 seeking to clarify precisely what water resources it classified as “navigable” and, thus, able to be regulated under the Clean Water Act (CWA).

The move to redefine “Waters of the United States” comes after the Supreme Court twice checked the agencies’ overly broad interpretation of the CWA in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers (2001) and Rapanos v. United States (2006). The two agencies, however, appear to have only doubled down on this broad interpretation by finalizing a rule that gives them even greater regulatory authority over smaller waterways and wetlands, perhaps including even drainage ditches, ephemeral streams or backyard ponds.

The 297-page finalized rule will be read and dissected by many in the coming days and weeks to determine the precise implications, but early indications suggest that little has been changed from the 2014 proposal.

To read the comments submitted by ALEC during the public comment period, please click here.

To read more about the effects of this proposed rule – as well as other EPA regulations – on state sovereignty, please read the ALEC publication titled The U.S. Environmental Protection Agency’s Assault on State Sovereignty.