Water categories included in EPA’s “Waters of the US”
In the three previous articles that have dealt with the proposed rule issued by the Environmental Protection Agency and the US Army Corps of Engineers to provide a “Definition of ‘Waters of the United States’ Under the Clean Water Act [CWA],” we have provided: 1) an overview of the proposed rule, how to submit comments on the rule, and reactions by general farm organizations to the proposed rule; 2) US Supreme Court rulings on waters covered by the CWA and the need to identify a significant nexus between clearly covered waters and other waters that drain into those the regulation of which is unquestioned along with a list of waters that are excluded from existing regulations and the proposed rule; and 3) the ways in which the scientific literature clarifies the issues of “connectivity of waters” and “significance” providing the agencies a defensible way of identifying the significant nexus the Supreme Court said was needed for the agencies to have regulatory authority over a water feature or class of water features like wetlands in various locations.
In this article, we look at the definition of “waters of the United States” in the proposed rule. Existing regulations include traditional navigable waters in the definition and the agencies propose no changes to those regulations. The term “traditional navigable waters” includes “all waters that are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide.” In addition, traditional navigable waters include all waters that have been, currently are, or are susceptible to “being used for commercial navigation, including commercial waterborne recreation (for example, boat rentals, guided fishing trips, or water ski tournaments).”
The second broad category of covered waters is interstate waters “including interstate wetlands and the agencies’ proposal today does not change that provision of the regulations. Interstate waters would continue to be ‘waters of the United States’ even if they are not navigable for purposes of Federal regulation…and do not connect to such waters.”
In the next section, the agencies write, “the CWA and its existing regulations include ‘the territorial seas’ as a ‘water of the United States.’ The agencies propose to make no changes to that provision of the regulation other than to move the provision to earlier in the regulation…. The CWA goes on to define the ‘territorial seas’ as ‘the belt of the seas measured from the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters, and extending seaward a distance of three miles.’ The territorial seas establish the seaward limit of ‘waters of the United States.’”