Proposed Rule to Clean Water Act – Comments accepted through October 20, 2014

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have released a proposed rule concerning federal Clean Water Act jurisdiction. See 79 Fed. Reg. 22188 (April 21, 2014). Comments on the proposed rule may now be submitted through October 20, 2014 due to a recent extension. The regulated community is likely to be affected by what appears to be a substantial expansion in jurisdictional reach; notwithstanding representations to the contrary by the Administration. Among the more significant elements of the rule are categorical inclusion of all “adjacent” waters, which include those within floodplain and riparian areas. Additionally, the agencies will engage in case-by-case analyses to determine jurisdiction over waters that have a “significant nexus” to established jurisdictional waters. Notably, although the agencies disclaim any intent to regulate groundwater, the agencies’ analyses rely expressly on shallow groundwater connections between and among relevant waters. If you have questions, you may contact Tom Wilmoth at 402 475 7082 or tom@aqualawyers.com .