EPA AND ARMY CORPS DEFEND PROPOSED DEFINITION OF “WATERS OF THE U.S.” TO CONGRESS

By TONI ELLINGTON

In response to strong opposition from states, businesses and legislator over the proposed rule redefining  “waters of the United States” under the Clean Water Act, heads of the EPA and Army Corps of Engineers testified last week in a joint House and Senate hearing to define the proposed definition.  According to the EPA and the Army Corps of Engineers, the proposed rule will not expand authority of eliminate exemptions.

In addition to the agencies’ testimony, Congress heard from groups opposing and supporting the proposed definition.

The proposed new definition was previously reported in this blog when it was announced on April 21, 2014, by the Army Corps of Engineers and the EPA as a change to the definition of the “waters of the United States.”  The definition would include seasonal and rain-dependent streams and wetlands near rivers and streams, and would bring those areas under Army Corps of Engineers’ jurisdiction.

According to the Army Corps of Engineers’ and EPA’s Joint Notice of Proposed Rulemaking  and the accompanying press release, the definition was being changed to clarify what is a “water of the United States” following Supreme Court decisions in 2001 and 2006 which made the issue confusing and complex.  However, critics of the proposed definition change claimed that it was a power grab by the EPA, and that the definition would extend the application of the Clean Water Act to ponds, ditches, culverts, and other wet areas.  In September 2014, the House of Representatives voted to block proposed changes to the Clean Water Act which would redefine the definition.  H.R. 5078, or the Waters of the United States Regulatory Overreach Protection Act of 2014, passed the House by a vote of 262 to 152.

The complete text of the proposed rule can be found in the Federal Register at 79 FR 22187-22274.  For more information, contact Toni Ellington at (504) 599-8500.