Ever Expanding Federal Authority Under the Clean Water Act

Pamela H. Silkwood

The federal authority over "navigable waters of the United States" is ever expanding and is no longer restricted to waterways that impair navigation and commerce. Under the Clean Water Act of 1972, the term "navigability" expanded to preventing pollution. In the mid-1970s, "waters of the United States" broadened to include wetlands. More recently, the United States Environmental Protection Agency ("USEPA") is attempting to make sweeping regulation under three fronts: (1) Proposed Rule-Definition of "Waters of the United States" (Docket ID No. EPA-HQ-OW-2011-0880) ("Proposed Rule"); (2) USEPA and U.S. Department of the Army, Army Corps of Engineers’ ("USACE") Interpretive Rule Regarding the Applicability of Clean Water Act section 404f)(l)(A) ("Interpretative Rule"); and (3) Memorandum of Understanding ("MOU") among U.S. Department of Agriculture, U.S. Environmental Protection Agency and U.S. Army Corps of Engineers ("MOU").

Over-Broad Definition of "the Waters of the United States"

The definition of "Waters of the United States" as proposed under USEPA’s Proposed Rule is overly broad and impermissibly expands the authority of the USEPA and USACE. The Interpretive Rule and MOU violated the Administrative Procedure Act by rewriting the 404 exemptions under the guise of an interpretative rule in order to expand their authority beyond waters of the United States to land uses.