EPA chief promises clarifications in Waters of the U.S. rule

By Philip Brasher

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WASHINGTON, Feb. 4, 2015 - Obama administration officials rejected Republican claims that they're seeking free rein to expand the reach of the Clean Water Act, but admitted a proposed rule had led to widespread confusion about what streams, ditches and other features could be regulated.

During three and a-half hours of testimony Wednesday before a joint House-Senate hearing, the officials described aspects of the rule that they'll clarify before making it final but didn't specify the changes that will be made.  

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They also acknowledged under GOP questioning that the administration will need more money to enforce the regulations.

House Transportation and Infrastructure Chairman Bill Shuster, R-Pa., kicked off the hearing with the Senate Environment and Public Works Committee by accusing the administration of making an “end-run around Congress” to expand the law's jurisdiction.

“If this rule goes into effect, it will open the door for the federal government to regulate just about any place where water collects, and in some cases regulate land-use activities,” Shuster said.

EPA Administrator Gina McCarthy denied that the administration exceeded its legal authority, but repeatedly acknowledged that the definitions in the proposed rule needed to be clarified. The rule is intended to address court rulings about what land features should be regulated under the law as “waters of the United States,” or WOTUS.

“You have my absolute word that we are going to try to narrow what we are claiming jurisdiction over,” McCarthy said in response to a question about ephemeral, or temporary, streams, which flow only after rains.

When questioned about how eroded areas would be treated, she said, “We are going to tackle that confusion head on.”

She also emphasized that ditches and other areas with water in them would have to have a “significant connection” with a navigable waterway to be subject to regulation.

“The ditch issue drives me crazy as it does everyone else,” she said at another point. ”We need to be very clear that we're not just respecting the current exemptions but expanding on those.”

The officials also said the final rule would somehow revise the terms “bed, bank and high water mark,” key aspects of what would constitute a regulated tributary.

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Jo-Ellen Darcy, who oversees the Army Corps of Engineers as the assistant secretary of the Army for civil works, didn't answer directly when pressed as to whether the new definitions would speed the processing of Section 404 permits, which are required for any earthmoving operations in regulated areas. The Corps of Engineers handles the permitting process.

The promises to rework the rule - but lack of specifics as to what changes would be made -- made it more difficult for Republicans to attack the rule during the hearing.

Darcy also deflected one line of attack early in the hearing. After Rep. Bob Gibbs, R-Ohio, displayed a photograph of an eroded farm field and complained that the producer had to obtain a permit for the land, Darcy responded that the field would be exempt from the Clean Water Act under the proposed new definitions.

“It was determined jurisdictional under the current rule. However, under the proposed rule it would not be jurisdictional,” she said.

At another point, when a Democrat raised concerns that farm runoff was polluting rivers and lakes, McCarthy defended farmers' practices and said that EPA and Agriculture Department were encouraging conservation measures.

Rep. Richard Hanna, R-N.Y., told McCarthy the administration had a “credibility gap." “Frankly no one trusts big agencies and big government,” Hanna said.

“We have a communication challenge,” she said. 

McCarthy said the administration still hoped to finalize the rule this spring but didn't give a deadline. Officially, the goal is April. She said the agency has received more than 900,000 comments on the issue.

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