EPA proposed rule on Waters of the U.S. draws brickbats, praise

By Sara Wyant

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WASHINGTON, March 26, 2014 - Reaction to the EPA's proposed rule to determine which bodies of water and wetland are protected under the Clean Water Act (CWA) has been swift and strong, with some lawmakers and agricultural groups calling it a massive government overreach while environmentalists said the proposal would help protect water quality. The proposed rule can be viewed here.

The 371-page proposal, which aims to clarify the long-contested definition of “waters of the United States,” would cover almost all seasonal and rain-dependent streams, while preserving CWA exemptions and exclusions for agriculture.

“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” EPA Administrator Gina McCarthy said in a news release.

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“Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.” The release noted that about 60 percent of stream miles in the U.S. flow only seasonally or after rain, but still have a “considerable impact” on downstream waters.

Several Republican members of Congress said the EPA and its partner in drawing up the proposal, the Army Corps of Engineers, had gone too far and the rule would be unduly burdensome on developers and on farm and ranch operations. Louisiana Democrat Mary Landrieu, Chair of the Senate Energy and Natural Resources Committee, agreed, noting that the proposed rule “represents another example of this agency overreaching and stepping outside of its bounds without thought to the economic consequences of its actions.”

The proposal, which would apply to all CWA programs, does not protect any new types of waters that have not historically been covered under the CWA and is consistent with the Supreme Court's more narrow reading of CWA jurisdiction, the EPA and the Army Corps said. Determining CWA protection for streams and wetlands became confusing and complex, the agencies said, following Supreme Court decisions in 2001 and 2006, prompting requests for clarification from lawmakers, industry, agriculture and environmental groups.

In addition to preserving the CWA agriculture exemptions, the EPA and the Army Corps said they have coordinated with USDA to develop an “interpretive rule” to ensure that 53 specific conservation practices that protect or improve water quality will not be subject to dredged or fill permitting requirements set out in Section 404 of the CWA. The proposed rule will be open for public comment for 90 days from publication in the Federal Register. The interpretive rule for agricultural activities is effective immediately, the agencies said.

Sen. Thad Cochran, R.-Miss., the Senate Agriculture Committee's ranking member, questioned the EPA's intent with the proposed rule, and encouraged the agriculture and business communities to weigh in. While noting that he was “suspect of the impact and objectives of this rulemaking, I give the agency some credit for finally choosing to use the rulemaking process and allow for public input as Congress intended,” Cochran said.

Cochran said he has been critical of actions taken by the EPA in recent years to expand the extent to which CWA can be used to tighten federal control over waterways. “Over the past five years the EPA has demonstrated a willingness to expand its regulatory reach, ignore common sense and, at times, exceed any rational reading of the law,” Cochran said. “Its actions have increased the regulatory burdens and costs on farmers, ranchers, businesses and other job creators.”

House Transportation and Infrastructure Committee Chairman Bill Shuster, R-Pa., and Water Resources and Environment Subcommittee Chairman Bob Gibbs, R-Ohio, issued a joint statement criticizing the rule for planning to “dramatically expand federal jurisdiction” over waters and wetlands.

Shuster said the proposed rule is “another act of an imperial presidency whose reach into the lives of every American, business, farmer, and property owner continues to grow.” He said his committee will conduct an oversight hearing on the proposed rule, and that there has been bipartisan support against such a move by EPA in the past.

House Majority Whip Kevin McCarthy, R-Calif., said the proposed regulation is aimed at undermining private property rights for the “sake of appeasing well-funded environmentalists.”

The National Cattlemen's Beef Association joined in the criticism.  “Under this expansion, essentially all waters in the country would be subject to regulation by the EPA and the Corps, regardless of size or continuity of flow,” the group said in a statement. NCBA President Bob McCan said ranchers will have to obtain “costly and burdensome” permits to take care of everyday chores, stifling economic growth without a corresponding environmental benefit.

The National Farmers Union (NFU) disagreed. In a statement, Chandler Goule, the union's senior vice president of programs, called the proposal “ag-friendly” and praised the EPA for listening to the NFU and other stakeholders during the rule-making process.

“I encourage EPA to continue to rebuild trust with the agricultural community by withdrawing its proposal to reduce the Renewable Fuel Standard targets,” Goule said.

The Center for Rural Affairs said the rule would close loopholes in the law that have left more than half of the nation's streams and millions of wetland acres unprotected from pollution.

“The proposed rule is a commonsense effort to clear the regulatory waters, protect the quality of the nation's surface waters, and provide an environment in which economically vital activities such as hunting, fishing and birding as well as farming and ranching can both thrive and contribute to a better quality of life,” said John Crabtree, the center's media director.

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