Obama issues Clean Water Act rule

By Philip Brasher

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WASHINGTON, May 27, 2015 - The Obama administration today issued a final rule re-defining what streams, ponds, wetlands and other features will be regulated under the Clean Water Act.

The 297-page rule includes some changes that administration officials say address concerns that definitions in the version proposed more than a year ago were too vague or overly broad. However, officials estimated that there would be a 3 percent increase in the number of findings that a stream, wetland or other feature is found to be under the law's jurisdiction. 

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“This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable,” President Obama said.

Congressional critics, however, immediately attacked the changes as inadequate and pledged to push ahead with efforts to kill the rule or at least block its implementation. Farm groups and other business groups have argued that the rule unfairly opens up more land to regulation.

"I am disappointed but not surprised that the EPA has decided to move forward with a rule that would increase confusion and red tape,” said Minnesota Rep. Collin Peterson, the ranking Democrat on the House Agriculture Committee.

Senate Environment and Public Works Chairman Jim Inhofe, R-Okla., said his committee would move legislation to kill the rule. "Instead of fixing the overreach in the proposed rule, remarkably, EPA has made it even broader," he said. A similar bill has already passed the House but lacked a veto-proof majority.

The changes in the final rule include language providing for case-by-case determinations of whether some streams would be deemed tributaries of a navigable waterway and therefore subject to regulation as “waters of the United States” (WOTUS).

The final rule tightens the definition of regulated wetlands to specify that they would lie within 100 feet of a regulated waterway or within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark.

Also new in the final rule is language for regulating regional wetland systems, including the Prairie Potholes in the upper Midwest as well as vernal pools in California and coastal prairie wetlands in Texas. Such wetland groups would be subject to regulation on a case-by-case basis if they're determined to have a “significant nexus” to a navigable water. All wetlands in a single watershed would be evaluated together.

 “Significant nexus” is broadly defined as meaning a wetland or other water body that “significantly affects the chemical, physical, or biological integrity” of a navigable waterway. A wide variety of wetland functions could meet the definition, ranging from sediment trapping to the presence of waterfowl.

Officials considered including the playa lakes on the southern and central Plains but decided against it. Playa lakes still could be regulated if they are determined to be adjacent to a navigable waterway.

In a summary of the rule covering agriculture issues, the Environmental Protection Agency and Army Corps of Engineers said the rule preserves existing exemptions for agricultural practices and makes clear that ditches won't be regulated if they were not constructed in streams and water flows through them only when it rains.

The agencies also say the rule will expand exemptions for erosional features, including gullies and rills. Groundwater and underground drainage water also is excluded from jurisdiction, as are “lawfully constructed” grass waterways.

 “The Clean Water Rule will provide greater clarity and certainty to farmers, will not create any new permitting requirements, and will not add economic burden on agriculture,” according to the summary.

The agencies estimated that the rule would provide annual benefits of $339 million to $350 million a year with costs, including administrative expenses and wetlands mitigation, of $158 million to $306 million.

The National Farmers Union said the final rule was an improvement from the original proposal. “The final rule puts bright-line limits on jurisdiction over neighboring waters, offering farmers increased regulatory certainty and mitigating the risk of enforcement or litigation,” said NFU President Roger Johnson.

The president of the American Farm Bureau Federation did not take a position immediately today. But AFBF President Bob Stallman said that “based on EPA's aggressive advocacy campaign in support of its original proposed rule - and the agency's numerous misstatements about the content and impact of that proposal - we find little comfort in the agency's assurances that our concerns have been addressed in any meaningful way.”

The National Association of Counties wasn't satisfied with the changes.

“The flawed consultation process has resulted in a final rule that does not move us closer to achieving clean water goals and creates more confusion than clarity,” said the group's executive director, Matthew Chase.

“Counties support common-sense environmental protection, but the final rule expands federal oversight and will create costly delays in critical work without any proven environmental benefit.”

The National Wildlife Federation, however, said the rule “balances the urgent need to protect our nation's essential water resources with landowners' desire for clarity.”

(This story was updated at 3:15 p.m.)

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