Rule Making On Definition of Waters of US Under Clean Water Act

The US Environmental Protection Agency (USEPA) has initiated rulemaking it hopes will provide better clarity for the scope of “waters of the US” regulated under the Clean Water Act (CWA). After U.S. Supreme Court decisions in SWANCC and Rapanos, the scope of "waters of the US" protected under all CWA programs has been an issue of considerable debate and uncertainty. The Act has a single definition for "waters of the United States." As a result, these decisions affect the geographic scope of all CWA programs.

EPA believes that SWANCC and Rapanos did not invalidate the current regulatory definition of "waters of the United States." However, the agency has stated that the decisions established important considerations for how those regulations should be interpreted, and experience implementing the regulations has identified several areas that could benefit from additional clarification through rulemaking. Therefore, EPA and the U.S. Army Corps of Engineers are developing a proposed rule for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. Ideally, this rule would make clear which waterbodies are protected under the Clean Water Act.

EPA currently anticipates a formal Notice of Proposed Rule Making (NPRM) to be published in the Federal Register in January 2012.

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