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Comment Period for USEPA-Proposed Changes to Definition of Waters of the U.S. Extended

CWAThe comment period for the United States Environmental Protection Agency's (USEPA) proposed changes to the definition of Waters of the United States under the Clean Water Act has been extended for a second time due to the high volume of comments. The federal register has already logged more than 224,000 comments. The comment period is now scheduled to end on November 14, 2014.

The USEPA has indicated the intent of the proposed rule is to clarify the definition of streams, wetlands, and other jurisdictional waters related to all Clean Water Act programs. The USEPA and the U.S. Army Corps of Engineers (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 Clean Water Act jurisdiction.

Sen. John Hoeven (R-ND) is leading an effort in the Senate Appropriations Committee to include language in the Energy and Water Appropriations bill to prevent USEPA and USACE from using funding to implement the new rule in Fiscal Year 2015. Sen. Hoeven released a statement saying, “While extending the comment period to allow for more input is fine, the fact is that the EPA needs to rescind the rule. The agency is asserting jurisdiction beyond that which has been granted to it by Congress. The Waters of the U.S. rule will heavily burden not just farmers and ranchers, but also the energy industry, construction industry and many other industry sectors. I will continue my efforts to either de-authorize the rule or defund it as a member of the Senate Appropriations Committee.”

Both the U.S. House and Senate have bills aimed at blocking the USEPA-proposed changes to the definition of the Waters of the United States. Sens. Hoeven, John Thune (R-SD), and Michael Enzi (R-WY) are among the 120 co-sponsors of the Protecting Water and Property Rights Act of 2014 (S.2496). If passed, the law would block the USEPA and USACE from finalizing the Definition of Waters of the United States under the Clean Water Act. In September, the U.S. House approved the Waters of the United States Regulatory Overreach Protection Act of 2014 (H.R. 5078) to prevent USEPA from using the proposed definition of Waters of the United States for any rulemaking regarding the Clean Water Act. The White House issued a statement after H.R. 5078 passed, saying President Barack Obama's senior advisers will recommend that he veto the bill if it is brought before him. H.R. 5078 appears to have strong support in Minnesota, as 23 of the State's prominent business and farm organizations sent a letter in support of H.R. 5078 to Minnesota's congressional delegation.

"There is legitimate confusion and concern among our clients on how, or even if, the proposed rule changes will impact operation of their existing facilities or construction of future facilities. This confusion is understandable, as the USEPA has stated that the proposed rule does not expand jurisdiction while also releasing information that approximately 3.2 percent of additional waters will be found jurisdictional as compared to existing practice. The anticipated rule changes will likely have the greatest effect in areas that have a high percentage of intermittent or ephemeral streams," says Jeff Hruby, AE2S Water Resources Practice Leader. According to the USEPA map below, the upper Midwest - especially the Dakotas and Montana - has some of the highest amounts of these features as a percentage of total stream length. (Click on the map to view it full-screen.)

USEPA streams map

If you have questions about how the updated 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. To access the Federal Registry and submit a comment on 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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