Defining Waters of the United States: An Important Proposed Rule

by | Apr 3, 2014 | Blog |

What is a Navigable Water?

Is the water in your ditch covered by the Clean Water Act (CWA)? What about the stream that flows occasionally or the wetland on your property? Is there a connection or “nexus” between these aforementioned areas and navigable waterways or “waters of the United States”?

This question has been the focus of debate for years. One of the cases that tried to settle this question of nexus was the 2006 Rapanos et al v The United States (United States Supreme Court). Our senior hydrogeologist, Dr. Michael Sklash, was one of the experts involved in evaluating whether this nexus existed.

EPA’s proposed rule

Fast forward to March 25, 2014, and the Environmental Protection Agency’s most recent proposed rule to define “Waters of the United States” under the CWA. No doubt, this 370-page proposed rule will be read very carefully by industry groups of every ilk and their legal counsel.

Will this proposed definition of “Waters of the United States” result in an over extension of regulatory authority which is the concern by some industry groups? Will it simply “close a legal loophole” for “polluters” as Natural Resource Defense Counsel has stated? And what will be the impact on the economy? These are significant questions. As history indicates, a productive economy certainly must protect the environment, but when central planning becomes overly burdensome, the result is an environment that is dangerously unhealthy (see P.J. Hill’s “Environmental Problems under Socialism”).

This proposed definition of Waters of the United States may be very significant in striking the “right balance” of environmental protection and a strong economy.

The comment period is now open, and this deserves the attention of anyone that is now, or potentially could be, impacted by this definition. To read the proposed clean water rule, click here.

If you require assistance with an issue involving groundwater, groundwater/surface water interface, including litigation support, contact
Dr. Michael Sklash (msklash@dragun.com) at 248-932-0228 ext 120.