The proposed rule offers a definition of "waters of
the United States" that expands the Clean Water Act's
jurisdiction.
On March 25, the U.S. Environmental Protection Agency and the
U.S. Army Corps of Engineers (collectively, the Agencies) released
a highly anticipated proposed rulemaking (Proposed Rule) that seeks
to set the jurisdictional scope of the Clean Water Act and address
the aftermath of several high-profile, but confusing, court
rulings.1 In doing so, the Agencies propose to expand
the Clean Water Act's reach by extending it to various
smaller-sized waters and to areas where waters may flow
infrequently. Because regular discharges to such jurisdictional
waters must be permitted under the Clean Water Act, and many
construction projects require permits because of dredge and fill
activities, the Agencies' proposal raises the specter of
increased permitting and mitigation costs, reduced project
flexibility, and enhanced enforcement exposure for the
