Have one or several playa lakes on or near a well pad in the Permian Basin? An access road nearby an ephemeral tributary of the Green River in the Uintah Basin? A pipeline that traverses lands dotted with prairie potholes in the vicinity of Williston? Effective August 28, a new definition of “waters of the United States” that the Environmental Protection Agency (EPA) and the Army Corps of Engineers recently promulgated is likely to change the way oil and gas operators locate, design, construct, and maintain oil and natural gas production facilities under all these circumstances.
The agencies’ redefinition of “waters of the United States” is the latest attempt to resolve a legal dispute over the scope of federal regulatory power under the Clean Water Act dating back more than three decades. In 1972, Congress passed the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” Among other provisions, the Act prohibits the discharge of “any pollutant to navigable waters from any point source.” But while the Clean Water Act defines “navigable waters” as “waters of the United States,” the Act omits any definition of “waters of the United States.”