New Waters of the US Definition

Swamp Stomp

Volume 13, Issue 52

Happy New Year!

A couple of weeks ago the new Clean Water Act rules were leaked by Science, Space, and Technology Committee, Chairman Lamar Smith (R-Texas).  On Thursday, November 14, 2013 the House Committee on Science, Space, and Technology held a hearing to review science and technology activities at the Environmental Protection Agency (EPA) including: agency-wide policies and practices related to the development and use of science in regulatory decisions; the role of independent scientific advisory bodies such as the EPA Science Advisory Board and the EPA Clean Air Scientific Advisory Committee; and the importance of transparency and integrity in the Agency’s science activities.

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Chairman Smith: “The EPA, like every other governmental institution, answers to the American people. Everyone agrees that we need to protect the environment, but we should do so in a way that is open and honest. It appears the EPA bends the law and stretches the science to justify its own objectives. We need to know whether the agency is telling the truth to the American people. The EPA must either make the data public, or commit to no longer using secret science to support its regulations. I will introduce legislation in the next few weeks that will stop the EPA from basing regulations on undisclosed and unverified information.”

On December 16-18, 2013 the EPA Science Advisory Board (SAB) met to conduct a peer review of the EPA draft report, Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence (September, 2013 External Review Draft, EPA/600/R-11/098B).  The purpose of this document is to support the soon to be released Waters of the US definition.  All Waters of the US are subject to regulation by the EPA and the US Army Corps of Engineers.

During the public comment phase of the SAB meeting it became clear that the board members were unaware that the new EPA rules had already been drafted and were in fact under review by the Whitehouse Office of Management and Budget (OMB).  The SAB board is chartered by the EPA, however the majority of the members are employed by Universities in the US and Canada.  Many of the SAB members expressed concern similar to Mr. Smiths’ that the rules were out in front of the science.

The following is the new EPA draft definition of a Waters of the US.

  1.  All waters which are currently used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of tide;
  2. All interstate waters, including interstate wetlands
  3. The territorial seas
  4. All impoundments of waters otherwise defined as waters of the United States under this definition
  5. All tributaries of waters identified in paragraphs (1) through (3) of this section;
  6. All waters, including wetlands, adjacent to a water indentified in paragraphs (1) through (5) of this section; and
  7. On a case –specific basis, “other waters”, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexusto a water identified in paragraphs (1) though (3) of this section.

During the SAB meeting the EPA representatives were quick to point out that the rules and the science were on a parallel track and that the rules would not be finalized until the SAB report was completed.  However, another report focusing on the economic impact of the new rules has also been leaked and serves as the final step before the rules are published in the Federal Register.   The existence of this report seems to make the EPA’s statement about parallel tracks a bit disingenuous.   Once the rules are published there is a public comment period of between 30-90- days.  However under certain circumstances it could be shorter.  It is anticipated that the final rule with the comments will be published sometime this spring.

These draft rules and the SAB report are the focus of our one-day workshops offered this winter.  Please check our calendar for new dates and locations.  We will also be briefly discussing these rules in our January 9, 2014 Wetlands Update webinar.

I wish you much success for the New Year!

Best,

Marc

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