By Ryan Yonk, Ken Sim, and Josh DeFriez
The Environmental Protection Agency and Army Corps of Engineers have proposed a rule changing the definition of “waters of the United States” under the Clean Water Act (CWA). Under current law, whether or not a water body qualifies as “waters of the United States” is determined case-by-case. The proposed rule seeks to add clarity to this process by providing a more robust definition for “waters of the United States.”
The rule would lead to expansion of the agencies’ jurisdiction, and it would impose higher costs on those who comply with the CWA. The proposed rule fails to demonstrate that its benefits outweigh its costs. It will likely fail to improve environmental outcomes and lead to uncertainty about what is allowed under the CWA.