Debate Continues over Proposed 'Waters of the U.S.' Rulemaking

The standoff between House Republicans and the Obama Administration over its proposed “Waters of the U.S.” rule shows no signs of ending soon. The rulemaking would define waters or wetlands distant from navigable waterways as “Waters of the U.S.” under the CWA, allowing agencies to invoke permitting, state water quality certification and oil spill response.


By Patrick Crow

The standoff between House Republicans and the Obama Administration over its proposed "Waters of the U.S." rule shows no signs of ending soon.

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. 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 said that the Waters of the U.S. rule won't expand the agencies' powers, House Republicans are unconvinced.

In June, the House Appropriations Committee approved a fiscal 2015 Energy and Water spending bill that would prohibit the Corps of Engineers from acting to "develop, adopt, implement, administer, or enforce" the proposed rule. House lawmakers are expected to insert a similar restriction in the EPA funding bill. Those bans are likely to be challenged when the funding bill goes to the Democratic-controlled Senate.

Republican lawmakers accused the administration of seeking to expand its CWA powers when EPA and Army Corps officials testified during a House Water Resources and Environment Subcommittee hearing in June.

Deputy EPA Administrator Bob Perciasepe and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy claimed the proposed rule would merely reduce uncertainties about CWA jurisdiction. They said the administration would work with stakeholders to improve and clarify the proposed rule.

The day before the House hearing, EPA announced that it would extend the public comment period on the rule 90 days until Oct. 20, 2014. It said the extension was prompted by the complexity and potential reach of the regulation.

In a letter to the subcommittee, the Waters Advocacy Coalition complained that the two federal bureaus have "crafted a complicated set of regulatory definitions, including new and poorly-defined terms, based on ambiguous and untested legal theories and regulatory exclusions." It said the proposed rule would increase federal control over water and land, subjecting private activities to more complicated and layered reviews and potential citizen suits.

"This will substantially impact job creation, economic investment and growth," the Coalition said. "It could also trigger additional permitting and regulatory requirements for both the regulated community and state regulators."

The National Water Resources Association noted that a 2002 study found that the average applicant for an individual CWA permit spent 788 days and $271,596 to complete the process, and the average applicant for a nationwide permit spent 313 days and $28,915 -- not counting any costs of mitigation or design changes. It said the private and public sectors spend nearly $2 billion per year to obtain wetlands permits.

The U.S. Chamber of Commerce has been foremost among opponents to the proposed rule. It said the draft would expand regulatory authority over millions of acres of wetlands and 2 million miles of intermittent streams and "ephemeral" steams -- those that rise and fall after a rain or snowmelt that were not previously under federal jurisdiction.

The Chamber predicted increased regulatory burdens for farmers, homebuilders, contractors, foresters, and small towns. It said EPA didn't ask those sectors for comments, as required by the Regulatory Flexibility Act, but simply declared that the proposed rule would not have a significant economic impact on them.

The Natural Resources Defense Council (NRDC) defended the proposed rule, which it said would protect the drinking water for 117 million Americans and the lakes, rivers and streams used by anglers, boaters and other recreational users.

Although the rule is estimated to cost $162 to $278 million per year, NRDC said clean water supports a strong economy. "Anglers spend roughly $40 billion a year on fishing, tourist dollars support the nation's beaches, and companies use an estimated 12 billion gallons of water to produce beverages valued at $58 billion a year," it said.

Ben Grumbles, president of the U.S. Water Alliance and former EPA assistant administrator, said the current regulatory proposal is a good start, but to win broader support, it should be part of a bigger effort that includes funding, state and local conservation, and regulatory assurances.

"It's always an uphill battle to find common ground when federalism, property rights and complex ecosystems get tangled up together," Grumbles said. "I'm hopeful a bipartisan coalition can someday find the resources and the courage to forge a package of measures, including the proposed rulemaking and the interpretive rule on agricultural exemptions, to allow forward progress." WW

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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