On Wednesday May 27, 2015 the EPA and Corps of Engineers finalized their proposed rule defining “Waters of the U.S.” Because the Corps of Engineers only regulates discharge of dredge or fill material into “Waters of the U.S.”, this new definition limits their involvement in wetland permitting. Until now the Corps of Engineers has been deciding what they can regulate based on an opinion from a Supreme Court decision. Waiting for the Corps to simply determine if they have jurisdiction over a wetland impact can take six months or more, and there has often seemed to be no rhyme or reason to the decision. One of the EPA/Corps’ goals of the new definition is to make these jurisdictional decisions more precise and more predictable.
The new definition of Water of the U.S reportedly does not include groundwater, shallow subsurface flows, tile drains, or most ditches. Because these items have not historically been regulated anyway, the new definition does not appear to expand regulation to new waters; however, will the devil be in the details? Time will tell if it will be business as usual (slow and confusing), or if there will truly be clarity and predictability.
The full rule is 299 pages long and can be found on the EPA website by clicking here. If you’re only interested in the meat of the rule, read pages 200 – 208. We’ve also included a number of resources below:
Your comments below are welcomed.