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June 3, 2014

EPA Proposes to Expand Its Own Jurisdiction

For decades, the Environmental Protection Agency has been charged with administering the United States Clean Water Act. One question that has bedeviled farmers, business owners and individuals – as well as judges and lawyers – is the scope of the Clean Water Act. The Act itself says it applies to "waters of the United States." So is a small stream purely in one state a "water of the United States?" What if it connects to the Great Lakes? Or an interstate river? What about a ditch running through a farm that connects to a small swamp which feeds into a tributary and then into a larger river? 

The new rule released by EPA purports to define "waters of the United States" and by doing so define its own jurisdiction. As expected, the rule is extraordinarily broad. It reaches not only what would be commonly understood as traditional navigable waters of the United States but, in many respects, any water anywhere. "The EPA proposal poses a serious threat to farmers, ranchers and other landowners," said American Farm Bureau Federation President, Bob Stallman. "Under EPA's new rule, waters – even ditches – are regulated even if they are miles from the nearest 'navigable' waters." The proposed rule is just that, a proposal and the EPA is accepting public comment until July 21, 2014.

In Michigan, the effect of the EPA rule is a little less significant because Michigan, unlike many states, administers the Clean Water Act – not EPA. So in some cases, waters that have not traditionally been regulated by EPA have, in the State of Michigan, been regulated by DEQ. Nonetheless, to the extent DEQ has been more lenient, it may be required to apply more stringent EPA standards if the jurisdiction of the Clean Water Act is expanded.

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