Update: Waters of the United States Rules Imminent?

As you’ll recall, in March 2014, the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) released a proposal to revise the rules that regulate the two agencies’ authority as described under the Clean Water Act (CWA). The rule would greatly expand their collective regulatory authority to dictate, regulate and limit land-use decisions. In other words, field operatives from either agency will have much more power to tell landowners what they can and can’t do on their land.

As you can imagine, the amount of feedback received on the rule was staggering with nearly one million formal comments being filed. Letters of concern were sent in from a range of groups, from local entities like the City of Wilmington, New Hanover County and Business Alliance for a Sound Economy (BASE) but also national trade groups and even the federal Small Business Administration.

Congress heard loud and clear about the potential impacts on landowners, local governments and agricultural interests. The US House passed a bill to stop the rulemaking in its tracks, but the US Senate failed to follow suit.

While elections changed some of the players at the federal level, the EPA and Corps intend to move forward with a final Waters of the US rule this spring. In a recent joint Congressional hearing, both the EPA and Corps reiterated their intent to move forward in the short term, in spite of the overwhelming comments on the previous draft.

So where are we now? In short, the issue will continue to be a major national discussion in 2015 with the reissuance of a final rule. It is anticipated that once the final rule is unveiled in the coming weeks, a potential implementation date will be set for the summer. If Congress wants to attempt to put a halt to the rule again, they would have to act fact between the issuance of the final rule and the implementation date.

One of the major supports for the rules were released January 23, when the Environmental Protection Agency’s (EPA) Office of Research and Development released the final science report, Connectivity of Streams and Wetlands to Downstream Waters.  You’ll remember that this Science Report, in draft form, was the basis for the Waters of the US Rulemaking.

According to the National Association of REALTORS:

“The report concludes that streams, wetlands, and other open-waters influence the integrity of downstream waters through both structural and functional connections. EPA, along with other federal agencies and states, can use this scientific report to inform policy and regulatory decisions, including the Clean Water Rule being developed jointly by EPA and the U.S. Army Corps of Engineers.”

The impacts of the rule will be immediate, widespread and significant. It is difficult to fully describe how profound the impacts will be in southeastern North Carolina. The regulation of ditches, tributaries and floodplains will cause immediate issues for agricultural interests and private landowners, as well as local governments and home owners associations.

In February, Congressman David Rouzer released a joint statement with the North Carolina Farm Bureau Federation, the North Carolina Association of REALTORS®, and the Business Alliance for a Sound Economy  (BASE) denouncing the Environmental Protection Agency’s (EPA) proposed rule change to the definition of “Waters of the United States” under the Clean Water Act.

Currently the EPA’s oversight applies to all navigable waters.  Under the proposed rule change the “Waters of the U.S.” would include smaller bodies of water and even some dry land.  This new definition would extend the EPA’s regulatory reach to seemingly any body of water.

“I am greatly concerned about the impact this rule change would have on Southeastern North Carolina,” said Congressman David Rouzer.  “The new rule is so vague that it could require our farmers and property owners to get permission from a federal bureaucrat before acting on their own property.  In talking with small business owners, farmers, realtors, and homebuilders, it’s clear the rule change could negatively affect every industry.”

“At the local, state, and federal level, this is an issue that has united businesses, local governments, and citizens,” said Tyler Newman, Senior Government Affairs Director for BASE.  “Simply, the rules would hamper future investment across wide areas of North Carolina.  We appreciate Congressman Rouzer’s continued leadership on this issue.”

“A study by the Civitas Institute found that the new EPA rules will cost the NC economy more than $1.5 billion in the next 15 years and will cost the taxpayers greatly,” said Cady Thomas, Chief Lobbyist for the NC Association of REALTORS®.  “The proposed rule provides essentially no limit to federal jurisdiction.”