Clean Water rule advances to OMB for review

By Philip Brasher

© Copyright Agri-Pulse Communications, Inc.



WASHINGTON, April 6, 2015 - The Obama administration has advanced a final Clean Water Act rule with revisions that the EPA Administrator Gina McCarthy promises will address a range of objections raised since it was first proposed a year ago.

A final version of the rule was sent to the Office of Management and Budget for review on Friday. Administration officials have said they intend to release the final rule this spring.

“We've worked hard to reach a final version that works for everyone - while protecting clean water,” McCarthy said in a blog post Monday.

She did not divulge any specifics of the changes that have been made from the original proposal from EPA and the Army Corps of Engineers. But she said, as she has in testimony to Congress and in a speech last month to the National Farmers Union, that the changes will provide tighter definitions of what streams, ditches and other features constitute “waters of the United States” (WOTUS) that the law is supposed to regulate.

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In the post, McCarthy said among other things that the final rule would provide a “better description of what connections are important” for a stream, ditch or pond to have a “significant nexus” with a navigable body of water.

The final rule would “refine the definition” of tributaries to ensure that erosion in a farmer's field wouldn't qualify, she said. The final rule will ensure there are “bright lines around exactly what we mean” by a tributary, she said.

McCarthy also promised more specificity in the definition of the term “other waters,” and for ditches. The final rule will only regulate ditches that “function like tributaries and can carry pollution downstream - like those constructed out of streams. Our proposal talked about upland ditches, and we got feedback that the word ‘upland' was confusing, so we'll approach ditches from another angle," she said. 

“The public will see that the agencies listened carefully and made changes based on their input,” McCarthy wrote. “That's how an open and collaborative process works - so we can ensure everyone's voices are heard, in a way that follows the law and the latest science. Our mission is to uphold that commitment to the American people.”

Similar remarks in recent months from McCarthy and Jo-Ellen Darcy, the assistant army secretary who oversees the Army Corps of Engineers, have done little to soften criticism of the rule.

Congressional Republicans are expected to use the fiscal 2016 appropriations process to try to block enforcement of the rule. The Senate last month voted 59-40 in favor of a non-binding amendment calling for the administration to limit the jurisdiction of the pollution law.

That margin was well short of the 67 that would be needed to override a presidential veto of a standalone bill to kill the rule. But Republicans are betting it would be politically more difficult for Presidential Obama to veto an appropriations measure that would be needed to keep the government operating.

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A subcommittee of the Senate Environment and Public Works Committee led by Dan Sullivan, R-Alaska, is holding a pair of field hearings on the WOTUS issue in Alaska this week.

In prepared testimony for a hearing Monday, the executive director of the Alaska Municipal League, Kathie Wasserman, complained that state and local governments were inadequately consulted as the rule was developed.

“This is a clear example of mandated expanded regulations imposed on local governments while at the same time, the U.S. government finds reasons to not provide funds available for current programs, much less for new expanded programs,” she said.


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