WATERS OF THE US

On Tuesday, March 25, 2014 the Environmental Protection Agency (EPA) proposed to expand broadly the waters of the United States subject to its regulatory jurisdiction under the Clean Water Act (CWA). Together with the U.S. Army Corps of Engineers, EPA claimed the rule "will benefit businesses by increasing efficiency in determining coverage of the CWA." However, TMA disagreed. 

In comments prepared for and submitted to the EPA, TMA raised the following issues with the rule, including that it: 

  • establishes a one-size-fits-all designation for all tributaries to covered waters
  • imposes federal jurisdiction over solely state waters (e.g., watercourses with no designated uses), which contradicts the Congressional intent of cooperative federalism in the Clean Water Act
  • creates confusion between the Connectivity Study and the legal test of "significant nexus" which leads to an over, expansive reading of the Clean Water Act and the relevant court decisions
  • applies the "significant nexus" test inappropriately to streams or tributaries
  • does not cite specific instances of "other waters," which leads to confusion as to what waters would be under the agencies' jurisdiction
  • attempts to impose a federal common law definition of traditional navigable waters when that determination is largely made by states and 
  • lacks well defined or ambiguous terms. 

TMA calls for the proposed rule to be withdrawn. If the agency desires to properly and truly define the definition of waters of the United States, then a collaborative process between stakeholders is the first step.