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Federal Omnibus Package Includes Rider Related to Proposed Waters of the U.S. Regulation

USEPAPresident Barack Obama signed the omnibus appropriations package in mid-December. The spending bill will fund the federal government for the remainder of Fiscal Year 2015. The federal spending package does not include an expected policy rider to stop the U.S. Environmental Protection Agency (USEPA) from developing and implementing its controversial Waters of the U.S. rule. However, the law does include a rider that forces the USEPA and the U.S. Army Corps of Engineers (USACE) to withdraw an interpretive rule on agricultural exemptions from the proposed Waters of the U.S. rule. The interpretive rule is intended to clarify agricultural conservation practices that are exempt from Clean Water Act (CWA) dredge-and-fill permits.

USEPA plans to finalize the proposed rule in April 2015. The Water Environment Federation (WEF) says there is a possibility that Republicans will be able to push through legislation to halt USEPA's proposed rule, since they will control the U.S. House and Senate in the new year. However, the bill would need enough votes to override a likely veto from the President.

North Dakota Senator John Hoeven says he will continue to work as a member of the Senate Appropriations Committee to defund and eliminate the proposed regulation in its entirety. Sen. Hoeven says Congress needs to defund or eliminate the Waters of the U.S. regulation because farmers and ranchers, as well as other industries like construction, energy and commercial development, remain exposed to other burdensome and costly regulations in the Waters of the U.S. proposal. “Defunding the Interpretive Rule is the first step toward making sure our farmers and ranchers can continue to carry out the basic farming and ranching activities they’ve practiced responsibly for generations,” Hoeven says in a news release. “Now, we need to focus on eliminating the Waters of the U.S. regulation completely in the new Congress.”

USEPA has indicated the intent of the proposed Waters of the U.S. rule is to clarify the definition of streams, wetlands, and other jurisdictional waters related to all Clean Water Act programs. The USEPA and USACE also say the updated definition of Waters of the United States is intended to be consistent with the Supreme Court's more narrow reading of the Clean Water Act. The proposed regulation includes broad new definitions of the scope of “waters of the United States” that fall under the jurisdiction of the Clean Water Act. Critics say the proposed definition could apply to a countless number of small wetlands, creeks, stock ponds and ditches that are typically regulated at the State level. There are concerns that the expansion of USEPA’s regulatory authority would have significant economic impacts for property owners who would face new federal permits, compliance costs, and threats of fines.

The Small Business Administration’s Office of Advocacy concluded in October 2014 that the USEPA had used incorrect data in framing the rule, which they said imposes costs directly on small businesses and has a significant economic impact on them. The group also requested that USEPA withdraw the proposed rule as further proof that the regulation would harm job creators. To access the Small Business Administration's Office of Advocacy's full comments about the proposed Waters of the U.S. rule, click here.

"The anticipated rule changes will likely have the greatest effect in areas that have a high percentage of intermittent or ephemeral streams such as North Dakota, South Dakota, and Montana," says Jeff Hruby, AE2S Water Resources Practice Leader. If you have questions about how the updated Waters of the U.S. rule could impact your facilities, planned projects, or existing programs, contact Hruby at Jeff.Hruby@ae2s.com or 701-221-0530. To access more information from the USEPA about the proposed rule, click here.

If you have any questions concerning the content of this newsletter,
please contact Heather Syverson at 701-364-9111 or Heather.Syverson@ae2s.com.
 
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