Environmental Protection Agency's New Definition of Water

April 9, 2014

Recent Supreme Court cases required the Environmental Protection Agency (EPA) and the Army Corps to clarify their water definitions. As such, the agencies have developed an unofficial, 370-page rule, says Dan Goldbeck, a research analyst at the American Action Forum.

  • U.S. v. Riverside Bayview gives the EPA broad authority to categorize bodies of water as "Waters of the United States," as specified in the Clean Water Act.
  • But two other cases narrowed that authority: one was Rapanos v. United States, the second was Solid Waste Agency v. U.S. Army Corps of Engineers (SWANCC).

The agencies have thus proposed to use a case-based framework to define bodies of water, rather than their broad definition of "such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds."

  • This case-based framework would require the agencies to determine whether a water body significantly affects the chemical, physical or biological integrity of a water traditionally regulated by the Clean Water Act.
  • Significant, the rule says, means "more than speculative or insubstantial."

Basically, the rule is vague and gives the agencies a very light burden of proof, and both private companies and state and local governments will have to change their permitting policies to accommodate this new definition -- $166 million of the $231 million in costs imposed by the rule are imposed on these parties. Narrowing the definition of "Water of the United States" is a good idea, but this proposal is confusing, technical and will likely be even longer in its final form.

Source: Dan Goldbeck, "Regulation Review: EPA's Definition of 'Water,'" American Action Forum, April 1, 2014.

 

Browse more articles on Environment Issues