Proposed Changes to “Waters of the United States” Definition

By Amy Millmier Schmidt, UNL Livestock Bioenvironmental Engineer

A proposed change to the definition of “waters of the United States” within the Federal Clean Water Act (CWA) was published in the Federal Register in April. When a new regulation or change to an existing regulation is proposed, the agency in charge of that proposed rule must accept comments from the public related to the rule and consider those when drafting the final version of the regulation. The comment period on this rule is open until July 21, 2014, though an extension to the comment period has been requested. If granted, an additional 90 days may be available to submit comments.

The rule, if passed, will redefine “waters of the United States” to include intermittent and ephemeral streams, along with other non-navigable water bodies. Though the U.S. Environmental Protection Agency (USEPA) and the U.S. Army Corps of Engineers (USACE) insist that the rule is designed to reduce confusion about CWA protection, questions remain about whether the language used in the proposed rule will broaden jurisdiction in a way that may negatively affect agricultural practices. For instance, the CWA as it is currently written authorizes the federal government to regulate only “navigable” waters. By expanding jurisdiction to intermittent streams and similar bodies of water that are not considered navigable, some are concerned that application of manure on lands near these water bodies could be considered a discharge and require a CWA permit. A movement led by the Farm Bureau is focused on encouraging voluntary withdrawal of the rule by the EPA and Corps or action from Congress if the rule is not withdrawn voluntarily. The social media hashtag #DitchTheRule can be followed for updates. 

The proposed rule and supporting documents can be viewed on the EPA website (