Waters of the United States

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On March 25, the U.S. Environmental Protection Agency published a proposed “Waters of the United States” rule, intended—the Agency explains—to clarify questions surrounding the definition of jurisdictional wetlands that arose following Supreme Court decisions in 2001 and 2006. EPA statements reiterate that the Agency’s intention is not to expand its authority over jurisdictional wetlands but suggests the rule will benefit resource users; and, in fact, nothing EPA can do can alter legislated definitions of what is a jurisdictional water or touch the silvicultural exemption.

Forest (and farm) users are nonetheless concerned that, whether or not EPA has a hidden agenda, the proposed rule raises questions about the treatment of ditches (including those created when “mounding” lands to establish plantations), ephemeral streams, and the issue of “connectivity” between either. Another concern is that, even if EPA succeeds in creating “clarity” with respect to designations, such “clarity” may merely establish markers to attract litigation from opponents.

EPA’s own information page on the proposed rule, including a download of the 371-page rule, itself, displays at www2.epa.gov/uswaters.