By Patrick Crow
The public comment period has closed on the Obama Administration's "Waters of the U.S." rule, but the deciding statement may have come in the November 2014 elections.
Last April, the Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers proposed a controversial regulation to clarify their jurisdictions under the Clean Water Act (CWA) following Supreme Court decisions in 2001 and 2006 that limited their powers (see "Proposed Rulemaking Could Trigger Federal Requirements for Selected U.S. Waterways," WW, May 2014).
The proposed rulemaking is critical because it would define waters or wetlands distant from navigable waterways as "waters of the U.S." under the CWA, allowing the agencies to invoke requirements such as permitting, state water quality certification and oil spill response. Although EPA Administrator Gina McCarthy has stated that the rule won't expand the agencies' powers, many remain unconvinced. The regulation is on track to be issued in the spring.
Groups representing farmers and ranchers have been vocal against the rule, as has the U.S. Chamber of Commerce. It claims the administration ignored the Regulatory Flexibility Act by failing to examine the rule's impact on small businesses and local governments.
EPA received hundreds of thousands of comments on the proposed rule. In a letter to EPA, the American Water Works Association (AWWA), Association of Metropolitan Water Agencies (AMWA), National Association of Water Companies, and Association of California Water Agencies emphasized the need for "balancing the broad interests of the CWA in protecting the nation's surface waters, while not unduly interfering with the provision of the nation's drinking water and water utility operations." The four groups said the rule should be clarified with specific exclusions for routine operation and maintenance of drinking water, wastewater and stormwater conveyances, aqueducts, canals, impoundments, and treatment facilities. In addition, they urged much greater clarity in the definitions used throughout the proposal.
Environmental associations, however, remained strong supporters of the regulation. "We believe the proposed rule to be a strong step forward that is largely consistent with the law's central purpose and broad jurisdiction," said the Natural Resources Defense Council (NRDC, joined by the Sierra Club, Conservation Law Foundation, League of Conservation Voters, Clean Water Action, and Environment America. But NRDC urged better protection of waterways that impact downstream water quality or that have important effects on interstate commerce, particularly those impacted by mountaintop removal coal mining operations.
Republicans have done what they could to block the rule. In 2014, the U.S. House passed a bill blocking the rule, accusing the EPA of "regulatory overreach," while the Democratic-controlled Senate ignored the legislation. House Republicans also sought to deny EPA funding to advance the rule.
The November elections, which gave Republicans control of the Senate, will make it more difficult for the Obama Administration to advance the regulation during its remaining two years.
Sen. David Vitter (R-La.), who is destined to become chairman of the Senate Environment and Public Works Committee, and Rep. Bill Shuster (R-Pa.), chairman of the House Transportation and Infrastructure Committee, have pledged to continue working to block the rule.
"It presents a grave threat to Americans' property rights, and its finalization will force landowners throughout the country to live with the unending prospect that their homes, farms or communities could be subject to ruinous CWA jurisdictional determinations and litigation," they said.
AWWA added, "We expect congressional Republicans to step up their push against the proposed EPA rule defining waters of the U.S. We also expect hearings and bills designed to force EPA to reveal all the data it uses and to provide specific information on confidence levels and ‘central estimates of risk' in the rulemaking process."
Scott Biernat, AMWA's director of regulatory affairs and scientific program development, also noted that it is difficult to predict how the tussle will end. "So many factors are in play; things are very uncertain," he said. "The issue clearly is a political hot potato, and that's only going to intensify."
About the Author: Patrick Crow covered the U.S. Congress and federal agencies for 21 years as a reporter for industry magazines. He has reported on water issues for the past 15 years. Crow is now a Houston, Texas-based freelance writer.
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