EPA Seeks Definition of ‘Bodies of Water’ for Clean Water Act

The EPA took a giant step toward finally defining which bodies of water are subject to regulation under the Clean Water Act last week, when it filed a draft rule with the White House regulatory czar designed to settle the confusion created in recent years by a series of court decisions.

The legal battles have centered on the definition and scope of a seemingly innocuous phrase — what exactly are “waters of the United States”?

Judges and regulators have wrestled over how to interpret the term in the absence of legislative action to clarify it. Now, the EPA is not only proposing a regulatory solution — which is not yet publicly available — but is also conducting a scientific review to accumulate evidence to back up the penultimate rule.

That approach to implementing the Clean Water Act (PL 95-217) is the latest example of the Obama administration’s philosophy on environmental policymaking: Act when Congress doesn’t and take steps to shore up the approach against future legal challenges.

“We’re not likely to get that clarity from Congress anytime soon,” said Bruce Myers Jr. of the Environmental Law Institute. “Further clarity from the agencies is beneficial.”

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