Republicans and some rural Democrats are sharpening their attacks against a forthcoming Environmental Protection Agency regulation that they say could vastly extend the agency’s reach over waterways and agriculture.
GOP lawmakers and Democrats from agriculture-heavy districts contend the Waters of the United States rule amounts to executive overreach. The EPA, however, says the regulation merely clarifies what is and isn’t subject to regulation.
Congress will play host Tuesday to three hearings that will touch on the rule, including one on Senate legislation that would require the EPA to submit a different regulation that follows certain principles and specifically includes some bodies of water, groundwater and soil water.
Many expect the EPA to issue the final rule Friday to meet a self-imposed deadline of finishing it by the end of spring.
The rule is fomenting uncertainty and anger in rural regions that say it would subject new restrictions to a slew of agricultural practices and streams that sometimes only carry water when it rains. Homebuilders, energy firms and mining companies also say they are concerned about how the rule may affect them.
“This really kind of gets well beyond protecting water into giving EPA more control over land-use decisions,” Don Parrish, senior director of governmental affairs with the American Farm Bureau Federation, told the Washington Examiner. “EPA couches this in wanting to protect water quality. There’s a fundamental disagreement about that.”
The rule is an answer to a pair of Supreme Court rulings, EPA Administrator Gina McCarthy said at a Senate Interior and Environment Appropriations Subcommittee hearing in April.
The Clean Water Act gives the agency jurisdiction over waters with a “significant nexus” to “navigable waters.” But there are varying interpretations as to what “significant nexus” means — a 2006 concurring opinion in Rapanos v. United States from Supreme Court Justice Anthony Kennedy, for example, said a non-navigable waterway could be a significant nexus if connected to a traditional navigable waterway under the Clean Water Act.
McCarthy said the rule was designed to address such questions.
“We have to look not just at those navigable waters but all the waters that feed into those that have an ability not just to be connected but to significantly impact the quality of those downstream waters that are so important to drinking water protection,” McCarthy said. “That’s what they’ve told us.”
The rule would apply to 2 million miles of streams and 20 million acres of wetlands that lack a clear definition under the Clean Water Act. McCarthy said people want that uncertainty corrected to better understand what practices require permitting, but critics contend doing so puts more bodies of water under EPA authority.
A Hart Research Associates poll commissioned by the League of Conservation Voters said 80 percent of registered voters favor the rule, which it said “would restore pollution protections that used to exist for streams and wetlands that feed into bigger lakes and rivers and ultimately end up in our drinking water supply.” The poll of 800 registered voters was conducted via landline and cell phone between May 4-7 and contained a 3.5 percent margin of error.
McCarthy said the rule wouldn’t remove any of the numerous Clean Water Act exemptions afforded to agriculture.
“We have done absolutely nothing to take away the exemptions or exclusions that are in current rules and law and we have in fact done more exclusions than are under current law,” she said at the April 29 hearing.
Opponents aren’t so sure. Parrish said the problem is that the exemptions McCarthy refers to are housed under a specific section of the Clean Water Act. He said applying the Waters of the U.S. regulation across the entire statute would subject other agriculture practices to new rules.
Agriculture groups and Republicans are also concerned the regulation would include ditches that contain water when it rains, though McCarthy has derided such claims as “ludicrous.”
“If clarity, certainty and better establishing reasonable jurisdictional limits was the intent of the rule, this proposal completely misses the mark. We continually hear testimony that the proposal will allow the EPA the ability to regulate essentially any body of water,” Rep. G.T. Thompson, R-Pa., the top Republican on the House Agriculture Committee’s Conservation and Forestry Subcommittee, said at a March hearing.
The House has already moved on legislation to handcuff the rule. Last week it passed a measure to block the rule until the EPA and state and local officials devise a replacement. Separately, the lower chamber passed a fiscal 2016 Energy and Water spending bill this month that would block the EPA from implementing the Waters of the U.S. regulation.
The White House issued a veto threat and singled out the measure as one of several “highly problematic ideological riders.”
