EPA ‘clarifies’ the definition of a Water of the U.S. in just under 400 pages

What do these 3 documents have in common?

• The United Nations Human Rights Council’s Detailed report on North Korean Human Rights Atrocities;

• The DOT’s report on the Untied States’ aging bridge, road and rail infrastructure;

• The EPA’s definition of a “Water of the US”.

Answer: They are all recently released government documents approximately 400 pages long.

That’s correct. After a number of court cases (including Supreme Court) contesting the EPA’s definition of what wetland impacts are under U.S. Army Corps of Engineers’ jurisdiction and what impacts are not, the EPA went to task to provide a clear definition (to be fair, they call it a ‘rule’) of what is, and what is not a “Water of the US”. What they have managed to do, in a mere 125,000 words, is provide a draft definition that takes hours to read and a team of lawyers, or bureaucrats, to interpret.

What does this mean for you? We expect this to be especially problematic for agricultural impacts. Considering the length and complexities of this rule, it remains virtually impossible for any credit buyer (without dual majors in law and environmental engineering) to determine whether or not their impact falls under Corps jurisdiction.

The alternative is to ask the Corps for an Approved Jurisdictional Determination (AJD). While this sounds simple enough, wait times on these are likely to exceed 6 months or more as explained in a public notice the Corps released just today. This means that if a farmer is not already in line, it is unlikely they will be able to complete the AJD process and buy credits in the 2014 growing season, and projects will take many times longer to complete.  And keep in mind that until the Corps proves to themselves through the AJD process that they don’t have jurisdiction, they assume that every impact is under their jurisdiction.

We also suspect that with many more farmers applying for Corps’ AJDs and permits in the future, wait times for both will be extended even further.  Not only this, but for those bankers who own the approximately 40% of wetland credits currently in the bank that are not Corps certified, your credits will become considerably less marketable. This, by the way, includes all of the new agricultural wetland banks established in the last couple of years, none of which have received Corps approval to date, and probably never will.

If you are so inclined, download and read the draft rule here.

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