EPA’s Regulatory Development and Retrospective Review Tracker – October 2011

After U.S. Supreme Court decisions in SWANCC and Rapanos, the scope of "waters of the US" protected under all CWA programs has been an issue of considerable debate and uncertainty. The Act has a single definition for "waters of the United States." As a result, these decisions affect the geographic scope of all CWA programs.

SWANCC and Rapanos did not invalidate the current regulatory definition of "waters of the United States." However, the decisions established important considerations for how those regulations should be interpreted, and experience implementing the regulations has identified several areas that could benefit from additional clarification through rulemaking. U.S. EPA and the U.S. Army Corps of Engineers are developing a proposed rule for determining whether a waterway, water body, or wetland is protected by the Clean Water Act. This rule would make clear which waterbodies are protected under the Clean Water Act. The projected date for publication of a proposed rule in the Federal Register is January 2012. For more information, click here.