WASHINGTON, May 20, 2015 – The administration is expected to release the final “waters of the United States” (WOTUS) rule in the next week or so. EPA Administrator Gina McCarthy has been promising to refine the definitions in the proposed rule to address concerns raised by critics. But there’s concern on Capitol Hill and in farm groups that the final rule could be even more expansive.
Those concerns revolve around language that was in the preamble of the proposed rule and on a comment McCarthy made in a speech to the National Farmers Union in March where she talked about ensuring that the rule protected areas she called “regional treasures.” The fear is that the agency may be considering some form of blanket jurisdiction for prairie potholes in the upper Midwest and the playa lakes on the southern Plains. “We teed ideas up in the rule itself — and we’re going to use our best judgment to set bright lines that folks can count on,” McCarthy said at the time.However, a source who has been briefed on what will be in the final rule says it won’t provide any such broad jurisdiction for prairie potholes and playa lakes. Instead, it would just allow for groups of such wetlands to be tested to determine whether they have a “significant nexus” with a navigable water, the test set by the Supreme Court. “They have reserved the right to consider more than one prairie pothole or more than one playa lake that are near each other as a single water,” the source said.
The source also said there will be more “concrete limits” on what can be classified as a tributary of a navigable water. The rule uses the terms “bed and banks and ordinary high watermark.” Critics say that definition could be used to claim jurisdiction over erosional features.
The legislation would “ensure the public that we hear and understand their concerns,” Sen. John Barrasso, R-Wyo., said at a Senate Environment and Public Works subcommittee hearing on the measure Tuesday. Susan Metzger, the assistant agriculture secretary in Kansas, said the rule would increase federal jurisdiction to 174,000 miles of streams from the 30,000 considered to be WOTUS.
Ahead of the rule’s release, Republicans are pushing bills (HR 1732 and S 1140) that would kill the rule and require development of a replacement measure, with limits over what features the EPA and Army Corps of Engineers could claim jurisdiction. Passing either version would be difficult, given the likelihood of a presidential veto. Only 24 Democrats supported the House bill, leaving it 17 short of a veto-proof majority.
Patrick Parenteau, a law professor at the University of Vermont, said state governments are often divided internally over the rule and that downstream states depend on the Clean Water Act to protect their water quality.
EPW Chairman Jim Inhofe of Oklahoma hasn’t announced plans yet to move the legislation.
Republicans are also using appropriations measures in an effort block the rule from being implemented, at least temporarily. Such a provision was included in the Energy and Water spending bill that passed the House earlier this month, and the Senate Appropriations Committee may consider a similar amendment to its version on Thursday.
EPA “tried to game the system” with its actions to promote the WOTUS rule, says Barrasso. The New York Times said EPA worked with the Sierra Club to promote the rule on Twitter and Facebook, and the agency also had the assistance of Organizing for America, an activist group that grew out of President Obama’s campaign operation.
Agency spokeswoman Liz Purchia said EPA is required by law to “inform the public” about the environmental challenges it is working to address. “We use social media tools like Twitter, Facebook and Instagram, just like any other organization does to stay connected and inform people across the country about our activities,” she said.
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