Struggle Continues over 'Waters of the U.S.' Regulation

Now that the Obama Administration has issued its final "Waters of the U.S." rule, the question is whether the Republican-dominated Congress will be able to kill it. The EPA and U.S. Army Corps of Engineers issued the 299-page regulation to clarify their jurisdictions under the CWA following Supreme Court decisions in 2001 and 2006. Lawsuits against the rule are inevitable, but opponents hope to block it through legislation in the meantime. A two-thirds majority in both chambers of Congress is needed to make such a law "veto proof" or override a Presidential veto.


By Patrick Crow

Now that the Obama Administration has issued its final "Waters of the U.S." rule, the question is whether the Republican-dominated Congress will be able to kill it.

The Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers issued the controversial 299-page regulation to clarify their jurisdictions under the Clean Water Act (CWA) following Supreme Court decisions in 2001 and 2006 (see http://www.waterworld.com/articles/print/volume-31/issue-1/inside-every-issue/wwema-corner/the-future-looks-bright-wwema-builds-on-milestones-from-the-past-year-in-new-strategic-plan.html WW January column).

EPA Administrator Gina McCarthy said the rule would make it easier to identify waters protected under the CWA but would only expand the federal regulatory reach by about 3 percent. Water associations have been wary of the rulemaking.

The Association of Metropolitan Water Agencies (AMWA) noted that utilities are advocating for enhanced protection of drinking water sources but are concerned about the potential for excessive regulation. AMWA said questions remain on the rule's applicability to many critical components of drinking water infrastructure, including impoundments and conveyances.

Lawsuits against the rule are inevitable, but opponents hope to block it through legislation in the meantime. A two-thirds majority in both chambers of Congress is needed to make such a law "veto proof" or override a Presidential veto.

The House of Representatives has voted 261-155 to pass a bill blocking the current rule. Although the bill had some Democratic support, it lacked a two-thirds majority.

The Senate Environment and Public Works Committee has sent a bill to the Senate floor requiring EPA to rewrite the rule under congressionally-mandated guidelines. It specifically exempts isolated waterbodies and water supply systems from CWA regulation.

Although the full Senate was expected to approve the bill, Committee Chairman James Inhofe (R-Okla.) was seeking additional Democratic votes to build a two-thirds majority.

Inhofe said that EPA was guilty of regulatory overreach in its proposed rule and then went further in the final rule, giving itself the power to regulate isolated wetlands and ponds in agricultural areas by designating them "regional treasures."

At a Senate hearing, Susan Metzger, a Kansas assistant agriculture secretary, said the rule would increase federal jurisdiction from 30,000 miles of streams currently under the CWA to about 174,000, not including isolated bodies of water that could be considered components of "regulated systems."

Inhofe's counterpart on the committee, Senior Democrat Barbara Boxer of California, strongly supported the rule. "Small streams and wetlands provide drinking water to roughly one in three Americans, and they must be protected from pollution at the source," she said.

The U.S. Chamber of Commerce, which led a coalition of associations against the rule, complained of overreach. It said that a body of water could fall under federal regulation if a part of it was within a 100-year floodplain or within 1,500 feet of navigable waters.

The Chamber said EPA and the Corps conducted no meaningful regulatory or economic impact analyses since they maintained that the proposal was a clarification of existing regulations.

Ellen Steen, general counsel for the American Farm Bureau Federation, said EPA ignored legitimate concerns about the rule's impact on agriculture. "Public statements from the Agency's highest officials made it clear that the Agency was not genuinely open to considering objections to the rule."

Farm Bureau President Bob Stallman added, "EPA's decision to mount an aggressive (social media) advocacy campaign during the comment period has tainted what should have been an open and thoughtful deliberative process."

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 an Austin, Texas-based freelance writer.

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