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EPA, Army Corps to Publish Final “Waters of the U.S.” Regs

Wednesday, May 27, 2015   (0 Comments)
Posted by: Gregg Robertson
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watersWASHINGTON, D.C. – After a year of controversy, the U.S. Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) announced on May 27 that they will publish as final their proposed regulations to define the term “Waters of the U.S.”

This action comes just weeks after the U.S. House of Representatives passed the Regulatory Protection Integrity Act (H.R.1732) by a vote of 247-155. Twenty-four Democrats voted with Republicans in favor of the bill. The bill would require EPA and the US Army Corps of Engineers to withdraw the proposed WOTUS rule and to work with states and other stakeholders to propose a new rule.

The Senate Environment and Public Works Committee held a hearing on S. 1140, The Federal Water Quality Protection Act. The bill is similar to the House legislation, but it would require EPA and the Corps to finalize a new rule by December 31, 2016. It also includes several principles that should be included in a new rule to place some parameters around EPA and Corps regulation of waters, and provide greater clarity for landowners, growers, pesticide applicators, and other stakeholders.

With Congress on its Memorial Day recess, reaction from the House and Senate to the rule’s finalization has been muted.

Many believe that this regulation significantly extends the jurisdiction of EPA and the Corps in regulating activities near small streams and wetlands. Some believe that it gives these federal agencies the power to regulate puddles and water in roadside ditches.

Both AmericanHort and the National Association of Landscape Professionals opposed the new rule. PLNA was neutral on the rule.

However, EPA has stated repeatedly that the new regs will not:

·         Protect any types of waters that have not historically been covered by the Clean Water Act.

·         Add any new requirements for agriculture.

·         Interfere with or change private property rights.

·         Regulate most ditches.

·         Change policy on irrigation or water transfers.

·         Address land use.

·         Cover erosional features such as gullies, rills and non-wetland swales.

·         Include groundwater, shallow subsurface flow and tile drains.

Only time will tell if any of the fears raised by the regulation’s opponents will be realized. The new rule is very much like Pennsylvania’s own Clean Streams Law, which Pennsylvania has been living with since 1936 and the world has not come to an end. But the devil will be in the enforcement posture that EPA and the Corps take in implementing the new rule.

EPA has an extensive website on the new rule at Good reading for the nights when you just can’t seem to get to sleep!

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