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NALP issues legislative alert: Waters of the United States rule

On Wednesday, April 15, the House Transportation and Infrastructure Committee passed H.R. 1732: The Regulatory Integrity Protection Act by a 36-22 vote. The legislation, which was introduced by the Committee Chairman Bill Shuster (R-Pa.) and Water Resources and Environment Subcommittee Chairman Bob Gibbs (R-Ohio), requires the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to withdraw their proposed Waters of the United States (WOTUS) rule and to develop a new rule in consultation with state and local governments and other affected stakeholders. Similar legislation could soon be introduced in the Senate.

A final Waters of the U.S. rule, or Clean Water Act (CWA) rule as the EPA is now calling it, is currently being reviewed by the White House Office of Management and Budget, the last step in the federal review process before a rule can be finalized. We expect a final rule to be published in June that will be substantially similar to the proposed rule.

 

How could this rule impact my business?

The CWA currently applies to “navigable waters.” The proposed rule could extend the law’s regulatory authority to manmade lakes, golf course water hazards, ditches or areas that have flowing water during heavy storms. Under the proposed rule, permits may be required for activities such as removing debris and vegetation from a ditch, applying fertilizer or pesticides, and building a fence or pond. In addition, the future development potential of certain land may be affected.

The proposed rule also includes a number of imprecise and broadly defined terms, such as “adjacent,” “riparian area” and “floodplain,” that do not clearly delineate which waters are covered. The new designations will create confusion and make it difficult for landscape professionals to know if they are complying with the law. Businesses could also be subjected to litigation under citizen suit provisions of the CWA for the failure to abide by permit requirements.

 

Requested action:

Write to your member of Congress now and ask him or her to support the Regulatory Integrity Protection Act (H.R. 1732).

 

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