The Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Army Corps) ( “the agencies”) published a proposed rule on March 25, 2014 that seeks to clarify which streams, wetlands and other waters are considered “waters of the United States” (WOTUS) and subject to regulation under the Clean Water Act (CWA).
Despite agencies’ assertions, the proposed rule raises many concerns for regulated stakeholders:
Broader in Scope: The proposed rule provides essentially no limit to CWA federal jurisdiction. It establishes broader definitions of existing regulatory categories, such as tributaries, and regulates new areas that are not jurisdictional under current regulations, such as adjacent non-wetlands and floodplains.
Inconsistent With Supreme Court Precedent: The Supreme Court has made clear that there is a limit to federal jurisdiction under the CWA. The proposed rule will cover many features that are remote and/or carry only minor volumes, and its provisions provide no meaningful limit to federal jurisdiction.
Adversely Affects Jobs and Economic Growth: The proposed rule will subject more activities to CWA permitting requirements, NEPA analyses, and mitigation requirements challenging the applications of new terms and provisions. The potential adverse impacts on economic activity have been largely dismissed by the agencies and are not reflected in EPA’s flawed economic analysis.
NAR is concerned that the agencies moved forward with this rule before EPA’s Science Advisory Board (SAB) completed its review of EPA’s scientific evidence, especially considering the scientific deficiencies that were identified by the SAB panel.
NAR is also disappointed that the agencies did not conduct a more comprehensive cost-benefit analysis, particularly impacts to small business, nor addressed the other significant data gaps.