Public Comment Period Deadline Approaching for Waters of the US Rulemaking

By Kenneth Smith, Esq.

The United States Environmental Protection Agency (“EPA”) and the Army Corps of Engineers have proposed a new definition of Waters of the United States in an attempt to clarify federal authority under, and applicability of, the Clean Water Act (“CWA”)1.  The deadline for submitting public comment on that proposed definition is rapidly approaching on April 15, 2019.  A copy of the proposed rule can be found in the federal register2.

Since its inception in 1972, the Clean Water Act has regulated the discharge of pollutants into the “Waters of the United States”, but had not expressly defined the term.  Prior to the implementation of the 2015 Rule, the definition of this term had been established by a number of Supreme Court decisions that only created additional uncertainties. 

The proposed rule redefining “Waters of the United States”, if implemented in its current form, would replace the 2015 Rule promulgated by the previous administration defining the term, and would likely have the effect of reducing CWA jurisdiction overall. 

If you are engaged in any activity that involves waterways or waterbodies that are not clearly navigable by boat, you should take a closer look at this proposed rule to determine how it may impact you.  Your comments in support of or in opposition to the newly proposed definition are due by April 15, 2019. 

If you have questions about how the CWA may affect your business or municipality, or if you believe you have been harmed by certain violations of the CWA, please contact Ken Smith, Esq. or Mindy Zoghlin, Esq. for a consultation.

1 https://www.epa.gov/newsreleases/epa-and-army-propose-new-waters-united-states-definition

2 https://www.epa.gov/sites/production/files/2019-02/documents/revised_definition_of_waters_of_the_united_states.pdf

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