EPA Proposes Its Waters of the U.S. Rule, Leaving No Puddle Unregulated

Yesterday, four months after the draft was leaked, the U.S. Environmental Protection Agency and Army Corps of Engineers announced the release of their proposed rule defining what waters fall under federal jurisdiction. Over a decade in the making, the rule, once finalized, will literally redefine the landscape of federal water pollution regulation, impacting laws governing wetlands fill, water discharge permits, oil spill liability, spill contingency planning, hazardous substance spill response, and more. It will impact municipalities, states, and industry of every type, from natural resource extraction like energy and mining, to construction and development and beyond.

The proposed rule is little changed from the leaked version, and therefore its implications remain much as they did when we first examined the draft. That being said, out of the gate, EPA and the Corps have thrown a softball to opponents of the rule - of the five or so small changes EPA made between the leaked draft and the proposal, one is sure to get media play.

The leaked draft provided a new definition of waters of the US and then a list of exceptions - of waterbodies EPA would not regulate. The proposed rule does the same, but eliminates one type of waterbody from the list of exclusions. The implication is that EPA had previously considered this type of waterbody as beyond regulation, but, in the proposed rule, apparently decided that it should be regulated. That type of waterbody: puddles.

Yes, in its leaked draft, EPA was seen to have been contemplating excluding puddles from regulation, but, in the end, didn't do so. While EPA provides an explanation for this change in the preamble of the rule, opponents will likely seize on the change to make light of EPA's rulemaking.

While sitting back to watch the sound bites which result from this change, this is the first of a series of blog posts on the proposal. For, while the proposed rule is little changed from the leaked draft, its language, and the preamble explaining it, crystalizes one of the larger policy discussions to be had in the arena of water law: Just how geographically broad should the federal government's role be in regulating water pollution? (We'll also try to divine EPA's actual position on puddles.)

This is the first in a series of posts regarding EPA and the Corps' proposed rule redefining "waters of the United States" under the Clean Water Act.