Background

Water is an important resource that needs protection from depletion, pollution and misappropriation. The Clean Water Act (CWA) is the primary federal statute governing water quality. The CWA bases federal jurisdiction on the "waters of the United States." It is up to the EPA and the Corps to define the statutory term "waters of the United States" by promulgating regulations. Courts have defined the term broadly to include not only water sources which are navigable-in-fact (that is, it can float your boat), but also streams that serve as tributaries and other non-traditional waterways. 

After being prompted by the Supreme Court, the EPA and the Corps issued a proposed rule to clarify the term. Despite the new regulation, the interpretation continues to be controversial raising constitutional issues about state's rights and affecting a variety of stakeholders, including railroads. The EPA has taken the position that it is not expanding its jurisdiction, assuring that the proposed rule only clarifies the meaning of the "waters of the United States" and does not broaden it. The EPA nonetheless admits that its jurisdictional reach will grow by three percent, though others argue that it will expand by much more. READ MORE