The Environmental Protection Agency and U.S. Army Corps of Engineers announced a rule Wednesday that critics say would expand federal reach over U.S. waterways, but that the Obama administration contends will clarify which farming, development and other practices are subject to regulation.
The battle over the “Waters of the U.S.” rule has been brewing for months and will continue both on and off Capitol Hill. The regulation attempts to define Clean Water Act regulations as stretching to bodies of water that have a “significant nexus” with “navigable waters” to prevent pollution of drinking water.
The EPA told various media outlets that the rule asserts the agency’s ability to regulate waters connect to those flowing into drinking water supplies, thus enabling regulation of upstream pollutants. The Washington Examiner and several other news outlets that cover the EPA regularly were not informed of the media call or of the release of the new regulation.
Republicans and rural Democrats are determined to roll the regulation back because they say agricultural and other interests fear the rule could halt virtually all development near water. They said the regulation would add features that only contain water when it rains and hit streams with limited flow.
“I am hearing from too many different sectors that this is not clarification. This is limitation not only on our ability to move, but to breathe,” Senate Energy and Natural Resources Committee Chairwoman Lisa Murkowski, R-Alaska, said at a recent hearing.
Rule opponents are readying a fight on the floor. The House has already passed legislation to prevent implementation until federal agencies and state and local governments work on a replacement. A bipartisan group of a dozen senators have also floated legislation forcing a redo.
And last week Sen. John Hoeven, R-N.D., agreed to hold off on an amendment at the Senate Appropriations Committee blocking the rule on the Energy and Water spending bill because he was assured by Murkowski and others that it would be addressed on the floor.
The House version of the Energy and Water spending bill, meanwhile, includes language blocking the rule. The White House has threatened to veto the bill, partly because of that policy rider.
“This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable,” President Obama said Wednesday.
Environmental groups and Democrats defended the rule, saying it would protect drinking water from pollution carried by streams and other bodies of water.
“Small streams and wetlands provide drinking water to roughly one in three Americans and they must be protected from pollution at the source. The Obama administration listened to all perspectives and developed a final rule that will help guarantee safe drinking water supplies for American families and businesses and restore much-needed certainty, consistency and effectiveness to the Clean Water Act,” said Sen. Barbara Boxer, D-Calif., the top Democrat on the Environment and Public Works Committee.
Democratic supporters in Congress and environmental groups say the regulation would clear up confusion about whether permits are needed for activity near certain waterways. The EPA said it adjusted its final rule to heed concerns laid out in public comments, such as making exceptions for streams with weak flow.
“The rule definition of ‘tributary’ requires that flow must be of sufficient volume, frequency and duration to create the physical characteristics of bed and banks and an ordinary high water mark. If a water lacks sufficient flow to create such characteristics, it is not considered a ‘tributary’ under this rule,” the rule said.
Still, the rule allows for regulation of some so-called “ephemeral streams” that contain water only after or during periods of precipitation because “the agencies determined that such streams provide important functions for downstream waters,” the rule said.
The agencies also said that some ponds and features that are connected to a larger watershed should be considered part of a “significant nexus” to navigable waters.
They said such treatment complied with a concurring opinion from Supreme Court Justice Anthony Kennedy in the 2006 case Rapanos v. United States. Kennedy said a non-navigable waterway could be a significant nexus if connected to a traditional navigable waterway under the Clean Water Act.
“[S]uch waters should be analyzed ‘in combination’ (as a group, rather than individually) in the watershed that drains to the nearest traditional navigable water,” the rule said.
Environmental groups praised the rule, as they said it settled lingering confusion over the Clean Water Act’s jurisdiction following the Rapanos ruling.
“No longer will the Supreme Court’s confusing decisions on the issue allow dirty fossil fuel companies to threaten people’s health by dumping toxins into our lakes, rivers and streams. This vital safeguard puts an end to over a decade of polluters taking advantage of muddled law by restoring the Clean Water Act and putting the health of our communities and families first,” Sierra Club Executive Director Michael Brune said.
But Senate Environment and Public Works Committee Chairman Jim Inhofe, R-Okla., said the agencies’ decision to regulate those waters, such as “prairie potholes,” which are temporary wetlands found over a stretch of the Great Plains states, underscored critics’ fears that the scope of the regulation was too wide.
“Despite their assurances, it appears that EPA and the U.S. Army Corps of Engineers have failed to keep their promises to Congress and the American people. In fact, instead of fixing the overreach in the proposed rule, remarkably, EPA has made it even broader,” Inhofe said.
• This article has been updated.
