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Not a Mirage: Most Ephemeral and Intermittent Streams in Arid Environments Would be Subject to Federal Agency Permits under Proposed Rules

April 17, 2014

By JILL YUNG

On March 25, 2014, the U.S. Environmental Protection Agency and the Army Corps of Engineers released a pre-publication draft regulation that proposes to make potentially significant changes to the definition of “waters of the United States,” which establishes the scope of the agencies’ permitting and enforcement authority under the Clean Water Act. The draft proposal would reassert jurisdiction over particular water features that the Supreme Court has outright denied, or at least limited, in recent opinions based on the agencies’ failure to provide the proper justifications consistent with their statutory authority.

The newly proposed definitions, supported by over 300 pages of analysis, could have significant impacts on development and operations in arid southwestern states, where hydrological connections, if any, are not always obvious. Once published in the Federal Register, the public will have at least 90 days to comment on the draft regulation and developers in the southwest in particular should provide feedback to ensure that the unique characteristics of “water” in this area are properly considered and fairly regulated.