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Comment Period Extended for Proposed EPA Rule Substantially Expanding Federal Jurisdiction Over Waters of the U.S., Including Creeks and Ditches

June 17, 2014
Environmental Law Update

On April 21, the United States Environmental Protection Agency ("U.S. EPA") published a proposed rule that expands the federal jurisdiction over "Waters of the United States" under the Federal Clean Water Act ("CWA").  In accordance with Administrative Procedures Act, a 90-day public comment period was established, making public comments due July 21, 2014.  On June 10, 2014, U.S. EPA announced that it was extending the public comment period by 90-days or until October 21, 2014.  U.S. EPA indicated that it had received numerous requests for an extension and numerous comments already received suggest that the Rule is being interpreted differently than what U.S. EPA has intended. The importance of the proposed rule for the agricultural industry and developers cannot be understated.  It would substantially expand the jurisdiction of the U.S. EPA and the Army Corps of Engineers on creeks and ditches with seasonal flow, small ponds, and wetlands that are not physically connected to traditionally-navigable waters.  It also is an attempt by an agency to legislate, and ignores Supreme Court decisions interpreting the CWA, both of which upset the balance of powers in our three branch system of government. 

Recent citizens' suits filed under the CWA are another example of the trouble that the proposed jurisdictional rule can cause.  The CWA authorizes citizens to file lawsuits for violations of the CWA if the government is not enforcing the CWA in a given situation.  Several suits have been filed in the last month that allege such failure to enforce the CWA from impacts on isolated waters that are likely not jurisdictional under Supreme Court decisions and existing regulations, but would be jurisdictional if the proposed rule is adopted.  Thus, if U.S. EPA and the Army Corps do not have the manpower or other resources to enforce impacts to the numerous natural features that would become jurisdictional under the proposed rule, citizens could bring suits under the CWA.

In another recent development, the Science Advisory Board work group recommended that the full Board not review the connectivity report that is supposedly the basis of U.S. EPA's proposed rule expanding its jurisdiction under the CWA.  That study has been widely criticized by industry groups as well as scientists.  If the proposed rule is not based on sound scientific research, then it is nothing more than a political maneuver to expand U.S. EPA's reach over private property.  In that light, additional public comment is necessary so that U.S. EPA can understand the far reaching impact of the proposed rule and the extent of the opposition to it.

So, file individual comments with the U.S. EPA, notify your industry group (Michigan Farm Bureau, Michigan Blueberry Growers Association, Michigan Agri Business Association, Chamber of Commerce, Michigan Manufacturers Association, Metal Mining Association of Michigan, etc.) of your opposition to the proposed rule, and notify your U.S. Representative of your opposition to it.  There is now plenty of time to do so.

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