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PLNA e-News: Protecting Values In the Nation

EPA and Army Corps Create Firestorm with “Waters of the U.S.” Regulation

Wednesday, April 30, 2014   (0 Comments)
Posted by: Gregg Robertson
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StreamWASHINGTON, DC - In a proposed regulation issued April 21, 2014, the federal Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) are attempting to define what waterways are covered under the federal Clean Water Act. The public has ninety days to comment on the regulation.

At stake, according to some, is your ability to use your land without significant interference from EPA and the Army Corps.

Two recent Supreme Court decisions have created some confusion as to the limits of EPA’s and the Corps’ jurisdiction. This proposed regulation is attempting to clarify the limits of federal jurisdiction over what is referred to as “Waters of the U.S.”.

Some believe that the new regulation would significantly expand the jurisdiction of EPA and the Army Corps. The American Farm Bureau, for example, opposes the new rule, believing that it would significantly expands the reach of EPA and the Corps in regulating normal farming practices, such as applying pesticides and fertilizers. The Farm Bureau believes that a ditch filled with water or a low wet area of a field could be subject to the same rules and permitting requirements that now control pollution discharges into major rivers and streams.

On the other hand, EPA and the Corps say that nothing will change for farmers under the new rule.

Who is right?

Well, it depends on where you live. Federal and state laws regulating water pollution are complex and intertwined. Some states have more stringent laws than the federal Clean Water Act governing water pollution, others do not. The federal law is supposed to be the floor for setting water pollution standards. Some states see it as a ceiling and have passed laws to that end.

Pennsylvania has had one of the most stringent laws governing water pollution in the country, known as the Clean Streams Act of 1936. In Pennsylvania, water resources are seen as the common property of all the state’s residents. They cannot be owned by any one person.

In Pennsylvania, rain falling in a roadside ditch is considered to be “waters of the Commonwealth” and is subject to state regulation and control. The notion is that all water is connected in one hydrologic system. Pollution in a ditch will eventually make it to ground water or a stream, then a river. The rule that EPA and the Army Corps are proposing is taking a similar approach to defining “waters of the U.S.”.

States that have less stringent laws governing water pollution than Pennsylvania may see some significant changes in how EPA and the Army Corps approach water pollution regulation in their states.

Pennsylvania has been living under a system similar to that the feds are proposing for some 78 years and so will most likely see little change in how water pollution is regulated if the proposed rule becomes final.

To read more about the proposed regulation, follow this link.

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