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Final Rule: Definition of ‘‘Waters of the United States’’
EPA and the U.S. Army Corp of Engineers have published a final rule that defines "waters of the United States" in relation to the Clean Water Act (CWA).
33 U.S.C. 1251 et seq. and its implementing regulations, subject to the exclusions in paragraph (b) of this section, the term ‘‘waters of the United States’’ means:
(1) All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
(2) All interstate waters, including interstate wetlands;
(3) The territorial seas;
(4) All impoundments of waters otherwise identified as waters of the United States under this section;
(5) All tributaries, as defined in paragraph (c)(3) of this section, of waters identified in paragraphs (a)(1) through (3) of this section;
(6) All waters adjacent to a water identified in paragraphs (a)(1) through (5) of this section, including wetlands, ponds, lakes, oxbows, impoundments, and similar waters;
(7) All waters in paragraphs (a)(7)(i) through (v) of this section where they are determined, on a case-specific basis, to have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section. The waters identified in each of paragraphs (a)(7)(i) through (v) of this section are similarly situated and shall be combined, for purposes of a significant nexus analysis, in the watershed that drains to the nearest water identified in paragraphs (a)(1) through (3) of this section. Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an adjacent water and no case-specific significant nexus analysis is required.
(i) Prairie potholes. Prairie potholes are a complex of glacially formed wetlands, usually
occurring in depressions that lack permanent natural outlets, located in the upper Midwest.
(ii) Carolina bays and Delmarva bays. Carolina bays and Delmarva bays are ponded, depressional wetlands that occur along the Atlantic coastal plain.
(iii) Pocosins. Pocosins are evergreen shrub and tree dominated wetlands found predominantly along the Central Atlantic coastal plain.
(iv) Western vernal pools. Western vernal pools are seasonal wetlands located in parts of California and associated with topographic depression, soils with poor drainage, mild, wet winters and hot, dry summers.
(v) Texas coastal prairie wetlands. Texas coastal prairie wetlands are freshwater wetlands that occur as a mosaic of depressions, ridges, intermound flats, and mima mound wetlands located along the Texas Gulf Coast.
(8) All waters located within the 100-year floodplain of a water identified in paragraphs (a)(1) through (3) of this section and all waters located within 4,000 feet of the high tide line or ordinary high water mark of a water identified in paragraphs (a)(1) through (5) of this section where they are determined on a case-specific basis to have a significant nexus to a water identified in paragraphs (a)(1) through (3) of this section. For waters determined to have a significant nexus, the entire water is a water of the United States if a portion is located within the 100-year floodplain of a water identified in paragraphs (a)(1) through (3) of this section or within 4,000 feet of the high tide line or ordinary high water mark. Waters identified in this paragraph shall not be combined with waters identified in paragraph (a)(6) of this section when performing a significant nexus analysis. If waters identified in this paragraph are also an adjacent water under paragraph (a)(6), they are an
adjacent water and no case-specific significant nexus analysis is required.
(b) The following are not ‘‘waters of the United States’’ even where they otherwise meet the terms of paragraphs (a)(4) through (8) of this section.
(1) Waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of the Clean Water Act.
(2) Prior converted cropland. Notwithstanding the determination of an area’s status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act, the final authority regarding Clean Water Act jurisdiction remains with EPA.
(3) The following ditches:
(i) Ditches with ephemeral flow that are not a relocated tributary or excavated in a tributary.
(ii) Ditches with intermittent flow that are not a relocated tributary, excavated in a tributary, or drain wetlands.
(iii) Ditches that do not flow, either directly or through another water, into a water identified in paragraphs (a)(1) through (3) of this section.
(4) The following features:
(iii) Artificial reflecting pools or swimming pools created in dry land;
(iv) Small ornamental waters created in dry land;
(v) Water-filled depressions created in dry land incidental to mining or construction activity, including pits excavated for obtaining fill, sand, or gravel that fill with water;
(vi) Erosional features, including gullies, rills, and other ephemeral features that do not meet the definition of tributary, non-wetland swales, and lawfully constructed grassed waterways; and
(5) Groundwater, including groundwater drained through subsurface drainage systems.
(6) Stormwater control features constructed to convey, treat, or store stormwater that are created in dry land.
(7) Wastewater recycling structures constructed in dry land; detention and retention basins built for wastewater recycling; groundwater recharge basins; percolation ponds built for wastewater recycling; and water distributary structures built for wastewater
Full explanation of the rule, including how EPA responded to public comments, is detailed here http://www.gpo.gov/fdsys/pkg/FR-2015-06-29/pdf/2015-13435.pdf
COMMENT PERIOD EXTENDED TO JULY 29!
Proposal To Mitigate Exposure to Bees From Acutely Toxic Pesticide Products; Notice of Availability
EPA is proposing mandatory pesticide label restrictions to protect contracted managed bees, e.g., honey bee colonies that are under contract to provide pollination services, from foliar applications of pesticides that are acutely toxic to bees on a contact exposure basis, i.e., those pesticides with an acutely lethal dose to 50% of the bees tested of less than 11 micrograms per bee, based on acute contact toxicity testing.
Although the likely outcomes are counterproductive for both the beekeeper (loss of honey bee stock) and the grower (diminished pollination services), many beekeepers and growers seem not to have found ways to avoid such outcomes. Consequently, EPA believes that strong regulatory measures should be in place for the contracted service
scenario to mitigate these potential problems. Therefore, EPA proposes to prohibit the foliar application of acutely toxic products during bloom for sites with bees on-site under contract, unless the application is made in accordance with a government-declared public health response. There would be no other exceptions to the bloom prohibition in the contracted-services scenario. Current neonicotinoid product labels include a 48-hr notification exception to the bloom prohibition. However, as part of this mitigation proposal, the 48-hr notification exception for crops under contracted pollination services during bloom for all neonicotinoid product labels would be removed.
For managed bees not under contract pollination services, EPA is not proposing to require any new language for pesticide labels. This does not alter EPA’s previous requirement for more specific restrictions on neonicotinoid pesticides for which EPA required language to address risks to bees not under contract for pollination services.
EPA is seeking comment on both the approach of label restrictions on products used for bees under contract for pollinator services, and for the approach to rely on state and tribal pollinator protection plans to bees that are not under contract for pollination
services. Comments must be received on or before June 29, 2015.
ADDRESSES: Submit your comments, identified by docket identification (ID) number EPA–HQ–OPP–2014–0818, to the Federal eRulemaking Portal: http://www.regulations.gov .
2,4-D Research Portal Launched
The Industry Task Force II on 2,4-D Research Data has launched a web page that gathers the most robust peer-reviewed studies, as well as video interviews with leading experts. The portal is available at 24d.org
Upgrades to Endangered Species Web Tool: Bulletins Live! Two
EPA is releasing Bulletins Live! Two, an upgraded version of Bulletins Live!, a web-based map application used to access geographically-specific threatened and endangered species protection Bulletins. This system is an important tool for pesticide users since it makes it easier to find pesticide use limitations for specific areas. Go to www.epa.gov/oppfead1/endanger/bulletins.htm to view the new application. Please note, if you are using Internet Explorer and have accessed Bulletins Live! in the past, you will need to clear your history or set your browser to check for newer versions of stored pages.
Bulletins generated by the application contain enforceable, geographically-specific pesticide use limitations that are necessary to ensure using a pesticide will not harm a threatened or endangered species or their critical habitat designated under the Endangered Species Act. A reference to Bulletins on a pesticide label ensures that the Bulletin’s pesticide use limitations are enforceable under the Federal Insecticide, Fungicide, and Rodenticide Act.
Bulletins Live! Two has several new features, including
- an interactive map;
- different base maps (satellite, street, geographic, etc.) to help users determine if specific pesticide use limitations apply in areas where the pesticide is intended for use; advanced
- searches for active ingredient, product (by name or registration number), location (state, county, specific address); and
- an enhanced system to receive public comments on draft Bulletins.
The new Bulletins Live! Two application is intended to replace Bulletins Live! and includes all of the current pesticide limitations captured in Bulletins Live! including 113 county Bulletins for 10 states for the protection of 14 threatened and endangered species.
Updated Salmon Mapper for Protecting Endangered and Threatened Salmon in the PNW and California
EPA is releasing an updated Salmon Mapper. The interactive map includes enhanced spatial resolution and the most recent geospatial data depicting salmon-supporting stream reaches where no-spray buffer zones apply in California, Oregon and Washington State for 12 pesticides that are subject either to the original 2004 injunction in Washington Toxics Coalition (WTC) v. EPA or the August 15, 2014, stipulated injunction in Northwest Center for Alternatives to Pesticides (NCAP) v. EPA.
The pesticides included in the NCAP v. EPA stipulated injunction are carbaryl, chlorpyrifos, diazinon, malathion and methomyl. The pesticides that remain subject to the original WTC v. EPA injunctive relief order are 1,3-dichloropropene, bromoxynil, diflubenzuron, fenbutatin oxide, metolachlor, prometryn and propargite.
These buffer zones will remain in place for carbaryl, chlorpyrifos, diazinon, malathion, and methomyl until EPA implements any necessary protections for Pacific salmon and steelhead based on reinitiated consultations with the National Marine Fisheries Services. Buffer zones for the remaining seven chemicals included in the WTC vs. EPA will remain in place until final Biological Opinions are completed. To view the no-spray buffer zones go to the Salmon Mapper.
For more information on the specific buffer zones and background on the NCAP case, visit http://www.epa.gov/oppfead1/endanger/litstatus/ncap-v-epa.html.
For more information on the WTC case, go to http://www.epa.gov/espp/litstatus/wtc/index.htm.
Read more about the buffers established by the WTC case http://www.epa.gov/espp/litstatus/wtc/maps.htm#wtc1.
EPA Reinstates No-Spray Buffer Zones in California, Oregon and Washington to Protect Salmon as a Result of Final Settlement Agreement for Northwest Center for Alternatives to Pesticides v. EPA
EPA is reinstating streamside no-spray buffer zones to protect endangered or threatened Pacific salmon and steelhead in California, Oregon and Washington State. No-spray buffer zones will be imposed for the pesticides carbaryl, chlorpyrifos, diazinon, malathion and methomyl in waters that support salmon. These buffer zones will remain in place until EPA implements any necessary protections for Pacific salmon and steelhead based on reinitiated consultations with the National Marine Fisheries Services.
This action is directed by a stipulated injunction (agreed to by the parties) that settles litigation brought against EPA by the Northwest Center for Alternatives to Pesticides and others in U.S. District Court in Washington State. On August 15, 2014, the U.S. District Court for the Western District of Washington entered the stipulated injunction, reinstating the streamside no-spray buffer zones that were originally established in prior litigation, Washington Toxics Coalition v. EPA. The reinstated buffers are part of the final court order; however, they will not be included as labeling requirements under Federal Insecticide, Fungicide, and Rodenticide Act.
For more information on the specific buffer zones and background on this court case, visit
EPA Introduces New Graphic to Help Consumers Make Informed Choices about Insect Repellents
The EPA today unveiled a new graphic that will be available to appear on insect repellent product labels. The graphic will show consumers how many hours a product will repel mosquitoes and ticks when used as directed.
The EPA’s new graphic will do for bug repellents what SPF labeling did for sunscreens. This new graphic will help parents, hikers and the general public better protect themselves and their families from serious health threats caused by mosquitoes and ticks that carry debilitating diseases. Incidence of these diseases is on the rise. The CDC estimates that there are nearly 300,000 cases of Lyme disease in the United States each year. Effective insect repellents can protect against serious mosquito- and tick-borne diseases.
The EPA is accepting applications from manufacturers that wish to add the graphic to their repellent product labels. The public could see the graphic on products early next year.
EPA is Advancing Pollinator Science and Sharing Useful Information with Growers and Beekeepers
At the request of beekeepers and growers alike, the agency has posted the Residual Time to 25% Bee Mortality (RT25) Data online. Bees may be susceptible to harm from direct exposure to pesticides sprayed on flowering plants, but pesticide residues generally decrease in toxicity as the spray dries and time passes. Farmers and beekeepers can use EPA's RT25 data to gauge the amount of time after application that a particular pesticide product remains toxic enough under real-world conditions to kill 25 percent of bees that are exposed to residues on treated plant surfaces. Some have used this information to select pesticide products with shorter periods in which the chemicals remain active and can affect bees.
Web-Distributed Labeling (WDL) for Pesticide Products
EPA is announcing the availability of PR Notice 2014-1 which presents the Agency's guidance on optional participation in WDL. The notice is intended to improve existing labeling by allowing users to download the portions of the pesticide labeling specific to their intended state and site of use.
Seed Treatment Resources Available
The American Seed Trade Assoc. and CropLife America have produced the "Guide to Seed Treatment Stewardship" to increase awareness among seed treatment applicators and growers about safe stewardship practices.
Consideration of Spray Drift in EPA's Pesticide Risk Assessment:
Notice of Availability and Request for Comment
EPA is announcing the availability of two draft guidance documents for public comment. These documents describe how off-site spray drift will be evaluated for ecological and human health risk assessments for pesticides. Once final, these guidance documents will be posted on EPA’s Web site, to ensure consistent risk assessment practices and provide transparency for pesticide registrants and other interested stakeholders. Comments must be received on or before March 31, 2014.
Submit your comments, identified by docket identification (ID)
number EPA–HQ–OPP–2013–0676, to the Federal eRulemaking Portal . Follow the online instructions for submitting comments.
WSDA Releases Criteria for Designating Pesticides Under I-502/I-692
WSDA has added a web page(http://agr.wa.gov/pestfert/pesticides/pesticideuseonmarijuana.aspx) to assist growers authorized by I-502 or I-692 who choose to use pesticides for the production of marijuana in Washington. The page contains links to the relevant regulatory agencies and to the WSDA criteria for designating pesticide use on marijuana. A searchable list of these pesticides is available from the WSU Pesticide information Center Online (PICOL) database. Tutorials for using PICOL are available on YouTube.