Tag: United States Army Corps of Engineers

EPA and the Department of the Army issue Amended Final Rule Defining WOTUS

By Rick Savage – Carolina Wetlands Association

On August 29, 2023, the U.S. Environmental Protection Agency (EPA) and the Department of the Army announced a final rule that amends the January 2023 definition of “waters of the United States” (WOTUS). The amendments conform the January 2023 definition to the U.S. Supreme Court’s decision in Sackett and will take effect immediately upon publishing in the Federal Register (likely to happen within two weeks). To read the pre-publication version of the revised final rule, go to Pre-publication Version of the Final Rule – Amendments to the Revised Definition of Waters of the United States (epa.gov). 

While exact details are yet to be digested, the gist of the ruling is becoming clear.  First, the significant nexus rule has been eliminated; so isolated wetlands are not jurisdictional wetlands, meaning they are not protected under the Clean Water Act.  Second, the new rule requires visual evidence of a continuous surface flow between a wetland and navigable water.  This part of the rule can get complicated as to what constitutes visual evidence of continuous surface flow.  I am sure that this will cause a lot of confusion and some developers will say there is no continuous surface flow and impact the wetland with a permit. 

Suffice it to say, this puts wetlands in North and South Carolina in jeopardy. The NC Department of Environmental Quality has estimated about 2.5 million acres of wetland have lost protection in North Carolina and I am sure a similar number in South Carolina.  The NC legislature could have continued to protect these wetlands; however, the recently passed Farm Bill eliminated state protection of isolated wetlands.   

We all need to brace ourselves for a lot of wetland loss and they are the very resource we need to protect our communities from flooding.  I think it is reasonable to expect more communities to get flooded, to have less clean water, and to have reduced climate resilience as well as miss the many other benefits that our wetlands provide. 

So go out an explore a wetland (before it gets developed?).

EPA Admit “Waters of the U.S.” Could Have Been Handled Better

Swamp Stomp

Volume 15, Issue 15

During the National Farmers Union convention in Wichita on March 16, 2015, U.S. Environmental Protection Agency Administrator Gina McCarthy expressed regret about how the EPA handled the controversial “Waters of the U.S.” rules.

Following U.S. Department of Agriculture Secretary Tom Vilsack, McCarthy spent the majority of her 30-minute speech claiming that she wished her agency had done a better job of explaining how EPA defined which bodies of water were regulated under the Clean Water Act.

McCarthy asserted, “I’m really concerned that we weren’t crystal clear out of the gate, not just about what we intended to do but about what we intended not to do, because it left all kinds of room for people to wonder not just what the words said but what we are trying to accomplish.”

Despite her regret over how the effects of rule were communicated, however, McCarthy is adamant that the EPA’s end goal will be met and the final rule be issued.  She said that the rule is currently on its way to the Office of Management and Budget and is expected to be issued this spring.

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After recent U.S. Supreme Court rulings, EPA is currently rewriting the rule, but McCarthy remains adamant that the need for the rule is clear. However, she did attempt to clarify what the rule would and would not intend to do. She provided the following assurances:

  • In response to numerous criticisms, McCarthy assured the public that EPA would not regulate puddles, land, or Fourth of July fireworks.
  • Addressing the worry that regulating “tributaries” could mean just about anything, McCarthy stated that EPA has established clearer definitions.
  • The rule does not include erosional features.
  • McCarthy claimed that roadside and irrigational ditches are not included, but ditches that are natural and constructed streams that can carry pollution downstream and act like tributaries are included.
  • Waters initially labeled as “other waters”—a term McCarthy conceded was too ill-defined—are in the process of being more narrowly stated by officials using their “best judgment.” However, the results of clarifying vague terms with even vaguer qualifications will most likely do little to quell concerns.

The main message of McCarthy’s speech was that farming and ranching should remain unaffected by the rule. “The exclusions and exemptions for agriculture . . . this rule we will not touch,” she said.

During Vilsack’s address, farm productivity was a major talking point. Farmers today are 12 times more productive then they were in 1950. Subsequently, Americans only spend 10 percent of their income on food, 15 to 20 percent less than many of the other countries in the world.

Vilsack also raised many concerns, including how to best introduce the next generation of farmer to the profession, labeling country origin of beef and pork in supermarkets, and how to best develop tools and support conservation and local agriculture, such as farmers markets.

“This isn’t just about farming. This isn’t just about agriculture. This is about rural life and maintaining the value system alive and well in the rural communities.”

While Vilsack is not forwardly addressing the “Waters of the U.S.” rule, he is assisting McCarthy paint an image of what the rule intends to do. The ambiguity of McCarthy’s speech did little to rid farmers and ranchers of their concerns, and her acknowledgment that the rule was not communicated as well as it could have been is somewhat diminished by “clarifying” points with terms that themselves are ambiguous.

 

Congress Pushes Back on New EPA WoUS Rules

Swamp Stomp

Volume 14, Issue 18

On May 1, 2014, 231 lawmakers led by U.S. Representatives Chris Collins (R-NY) and Kurt Schrader (D-Ore.), in the U.S. House of Representatives sent a letter to the EPA and U.S. Army Corp of Engineers to retract its proposed rule to expand federal control under the Clean Water Act. They have citied technical, legal and economic concerns regarding the new rules that have been published in the Federal Register.

Congress is most concerned with the legal position that the EPA and the Corps have taken by more or less basing the entire rule revision on Justice Kennedy’s lone opinion in the Rapanos case. The letter states, “Contrary to your agencies’ claims, this would directly contract prior U.S. Supreme Court decisions, which imposed limits on the extent of federal CWA authority,” the lawmakers stated in the letter. It went on to say that “Based on a legally and scientifically unsound view of the “significant nexus” concept espoused by Justice Kennedy, the rule would places features such as ditches, ephemeral drainages, ponds (natural or manmade), prairie potholes, seeps, flood plains, and other occasionally or seasonally wet areas under federal control.”

The letter also raised concerns with the economic analysis on which the proposed rule is based. In the agency’s analysis, it was determined that the proposed rule would result in a 2.7 percent increase in jurisdictional determinations and would impact an additional 1,332 acres nationwide under Section 404. They applied that 2.7 percent increase across other EPA permitting programs. The agencies determined that the draft proposed rule would result in costs between $133 million and $231 million annually. Based on this, the agencies have said the rule would not have a significant economic impact. The lawmakers disagree, saying errors in the analysis “call into question the veracity of any of the conclusions in the economic analysis.”

House Natural Resources Chairman Doc Hastings (R-Wash.) says the proposal is a massive power grab that must be stopped. “Under this plan, there’d be no body of water in America – including mud puddles and canals – that wouldn’t be at risk from job-destroying federal regulation,” he says.”

Read the full letter here.

To date the EPA has received more than 61,000 comments on the new rules. Your comments and suggestions are needed. So far a total of 789 comments have been published. Many support the new rules and a few do not. If you have any opinion on these new rules, please provide you comments by going to regulations.gov and searching for EPA-HQ-OW-2011-0880. From there you can see the entire docket and submit your comments.

Comments are due by July 21, 2014. If EPA and the Corps finalize these rules it is expected that they will be in force by the fall of this year.