After years of study, litigation, controversy – and mayhem – the Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”), on April 21, 2014, jointly published, for comment, a new definition of “waters of the United States” under the Clean Water Act (“CWA”). 79 Fed. Reg. 22188-22275. It is not easy to overestimate the scope and reach of this proposed rule. While it is purportedly aimed at clarifying which wetlands and streams qualify for protection under the CWA, it can also be seen as impacting most bodies of water in the country and the lands around them as well. Because of this, further litigation, it seems, is assured, as well as direct congressional action to reverse or change the rule by authorizing legislation or indirect congressional action to prohibit the EPA or Corps from spending any funds to implement it.
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