On Sept. 8, the Executive Office of the President issued a statement of administration policy expressing support for the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) joint Waters of the U.S. (WOTUS) rulemaking. According to the statement, President Obama would likely veto H.R. 5078, the Waters of the United States Regulatory Overreach Protection Act, if passed by congress. The bill, passed by the House on Sept. 9, would block EPA and the Corps from “developing, finalizing, adopting, implementing, applying, administering, or enforcing” the proposed WOTUS rule or other associated guidance. It would also block the interpretive rule that was released with the proposed WOTUS rule, which clarifies agricultural practices exempt from Clean Water Act dredge-and-fill permits. H.R. 5078 would require the EPA and Corps to develop consensus recommendations with state and local officials, which would then be subject to public review.
House concerns about WOTUS, as voiced by House Science, Space, and Technology Committee Chairman Lamar Smith, include, among others, the expanding geographic reach of the administration under the proposed rule. On September 5, the National Pork Producers Council and other agriculture groups released interactive maps developed by Geosyntec Consultants showing the areas that would fall under EPA and Corps jurisdiction if the WOTUS rule were finalized.
In other WOTUS news, the Environmental Protection Agency Science Advisory Board will meet in late September to examine the science of the proposed WOTUS rule and the draft “Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence” study.
In an earlier meeting of the Science Advisory Board, the agency also discussed whether ditches would be considered jurisdictional. According to EPA, not all ditches will be regulated but those with perennial flows to navigable waters as well as those excavated through a stream or wetland could fall under the jurisdiction of the Clean Water Act.
Despite these ditches being jurisdictional, the rule actually proposes to reduce jurisdiction and exclude certain ephemeral and intermittent ditches, according to the EPA. Ditches constructed in dry lands, those that drain only dry lands, and do not have perennial flow, which includes many ditches for collecting roadside or agricultural runoff, are not jurisdictional. Experts on the Science Advisory Board, however, call for further clarification and more precise terminology. Read more about WOTUS, and check out EPA’s Ditch the Myth page, which seeks to clarify some common misconceptions about the proposed rule.