On March 17, 2015 the Subcommittee on Conservation and Forestry of the US House of Representatives met to discuss the impacts of the EPA’s proposal on expanding the definition of ‘Waters of the US’ (WOTUS). Last fall, IPANM submitted extensive comments on the proposed rule, arguing the US Supreme Court has already stated twice that the EPA and Army Corps have impermissibly expanded their regulatory authority and the proposed definitional change to WOTUS was just another substantial overreach. NM Congresswoman Lujan-Grisham provided opening remarks and invited our New Mexico Secretary of Agriculture, Jeff Witte to speak on behalf of our state and the National Association of State Departments of Agriculture. Mr. Witte testified that the EPA was substantially overreaching their authority with the new definition of WOTUS. Mr. Witte also cited the New Mexico Environment Department comments which also strongly opposed the EPA expanded Waters of the US definition. Every other witness before the Committee also asked the EPA to withdraw or re-propose the rule.

Today, EPA Administrator and the Army Corps of Engineers had a press conference to announce the introduction of the final rule and definition for ‘Waters of the US.” The press release is at:

http://yosemite.epa.gov/opa/admpress.nsf/0/62295CDDD6C6B45685257E52004FAC97. The final rule has not been published in the federal register yet, but it will be final within 60 days from today or tomorrow. The preamble to the rule is 299 pages and is available on the EPA website but the key document is the actual regulation defining WOTUS which is at: http://www2.epa.gov/sites/production/files/2015-05/documents/clean_water_rule_part_230_3_1.pdf Note that this document is a prepublication document to the one that will be posted in the federal register tonight or tomorrow.

Of note in the new definition, ephemeral washes or temporary ditches are not considered WOTUS, nor are manmade pools or holding ponds or wastewater recycling facilities. The EPA also ‘clarified’ definitions of adjacent and tributary. It is expected that both the agricultural industry and the oil and gas industry will take a hard look at this new rule to determine whether litigation is needed.