EPA’s Overreach On Clean Water Act Will Effect Texas Water

By JENNY HOPKINSON 5/27/15 10:41 AM EDT

 

POLITICO: The Obama administration announced new protections Wednesday for thousands of waterways and wetlands, pushing ahead despite a fierce counterattack from powerhouse industries like agriculture, oil, and home-building — and their supporters in Congress.

On its face, the Waters of the United States rule is largely a technical document, defining which rivers, streams, lakes and marshes fall under the jurisdiction of the Environmental Protection Agency and the Army Corps of Engineers. But opponents condemn it as a massive power grab by Washington, saying it will give bureaucrats carte blanche to swoop in and penalize landowners every time a cow walks through a ditch.

And it comes amid years of complaints from Republicans about President Barack Obama’s regulatory agenda, which has encompassed everything from power plants and health insurers to Internet providers and for-profit colleges.

Critics are already fighting back: The House voted earlier this month to block the rule, with support from both Republicans and some farm- and energy-state Democrats, and similar legislation is moving through the Senate. Opponents are also preparing lawsuits that will add to an already long trail of litigation over the government’s powers to regulate water — an issue the Supreme Court has taken up twice, with confusing results, since 2001.

Obama was quick to add his personal endorsement to the rule, saying the measure is needed to protect vulnerable waterways and drinking water and to keep the economy going.

 “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,” Obama said in a statement after the EPA released a final version of the regulation. “My administration has made historic commitments to clean water, from restoring iconic watersheds like the Chesapeake Bay and the Great Lakes to preserving more than a thousand miles of rivers and other waters for future generations. With today’s rule, we take another step towards protecting the waters that belong to all of us.”

But House Speaker John Boehner accused the president of delivering yet another devastating blow to the economy.

“The administration’s decree to unilaterally expand federal authority is a raw and tyrannical power grab that will crush jobs,” the Ohio Republican said in a statement. “The rule is being shoved down the throats of hardworking people with no input, and places landowners, small businesses, farmers, and manufacturers on the road to a regulatory and economic hell.”

The agencies and their supporters say the safety of drinking water and stream health are threatened because of weak state and local regulation and a lack of enforcement. The rule is meant to make it clearer which waterways EPA and the Corps of Engineers can oversee under the 43-year-old Clean Water Act, which covers “navigable waters” such as the Mississippi River and Lake Erie but is vague on how far upstream protections must go to keep those water bodies clean.

In essence, the rule would establish whether antipollution laws are triggered if a farmer blocks a stream to make a pond for livestock, a developer fills in part of a wetland to put up a house or an oil pipeline has to cross a creek.

“The only people with reason to oppose the rule are polluters who threaten our clean water,” senior White House adviser Brian Deese told reporters during a conference call. He added that the rule “is based on common sense. … The status quo is rife with unsustainable confusion over what’s protected and what’s not.”

The final rule ensures protections for tributaries that have physical signs of flowing water, even if they don’t run all year round, and ditches that “look and act” like tributaries, said Jo-Ellen Darcy, the assistant secretary of the Army for civil works. The rule also limits EPA regulatory oversight to any body of water within 1,500 feet of another water body already covered by the rule, unless they have a surface water connection.

EPA and the corps also decided to extend protections to regional water features, like prairie potholes and coastal bays in the Delmarva peninsula and the Carolinas, on a case by case basis.

EPA Administrator Gina McCarthy said the rule maintains long-held exemptions for agriculture and does not cover features like tile drainage systems, regular farm activities or the moving of livestock. The agency detailed many of the changes in a series of industry-specific fact sheets, also released Wednesday.

Despite the changes, McCarthy added that the new rule would expand the reach of the Clean Water Act by only about 3 percent. The measure is expected to take effect 60 days after it’s published in the Federal Register.

Defining where a navigable waterway begins and ends has long spurred disputes among the government, environmentalists and industry. Supreme Court rulings in 2001 and 2006 added to the confusion, imposing a less-than-clear requirement that upstream water must have a “significant nexus” to a navigable waterway to fall under the federal government’s jurisdiction.

Groups that back the rule, such as the Natural Resources Defense Council, the Sierra Club, Environment America and fishing organizations, want the definition to be as broad as possible, saying you can’t protect major lakes and rivers unless you protect their sources upstream. And they say the federal government needs an oversight role, argued that states lack the financial resources and manpower to keep water from becoming polluted.

Supporters of the rule were quick to herald Wednesday’s action.

“Small streams and wetlands provide drinking water to roughly 1 in 3 Americans and they must be protected from pollution at the source,” said Sen. Barbara Boxer of California, the top Democrat on the Environment and Public Works Committee, in a statement.

On the other side are Republicans and some of the biggest spenders in Washington.

“The administration’s cavalier attitude toward expanding the federal government’s authority into our backyards is absolutely outrageous,” said Sen. David Vitter (R-La.). “Not only were small businesses — who will be dramatically impacted by expanding of the definition of ‘waters of the United States’ — inappropriately excluded from the rule-making process, but the federal government shouldn’t be regulating puddles on private property in the first place.”

The Chamber of Commerce and the National Association of Manufacturers have joined the American Farm Bureau Federation, Dairy Farmers of America, pesticide manufacturers, mining companies, home builders, state and local governments, water utilities, flood control districts, the timber industry, railroads, real estate developers and even golf course operators among the more than 230 organizations and companies that have listed “Waters of the United States” on federal lobbying disclosures since the administration proposed the rule in March 2014.

Many food and beverage giants have pitched their thoughts to lawmakers on the measure, too, including Tyson Foods, Perdue Farms, Land O’Lakes, the potato giant J.R. Simplot and Ocean Spray Cranberries. Also weighing in are about 40 energy companies, including Halliburton, BP, Shell, Chevron, Rio Tinto and the Oklahoma Independent Petroleum Association, in addition to two dozen power companies such as Duke Energy and Pepco.

Many of the groups also made their case directly to White House and EPA officials during more than a dozen visits after the rule was sent for review at the Office of Management and Budget, meeting records show.

The lobbying effort has already had some success.

This month, the House passed a bill from Transportation and Infrastructure Chairman Bill Shuster (R-Pa.) that would force EPA and the Army Corps to kick their rule back to the drawing board and consult with states and industries before writing a new proposal. The 261-155 vote included yes votes from 24 Democrats, of whom eight sit on the House Agriculture Committee and two sit on Energy and Commerce. Four of the Democrats are from energy-heavy Texas.

The Senate is considering a similar measure from Sen. John Barrasso (R-Wyo.) that is awaiting a vote in the Environment and Public Works Committee and has the backing of Senate Majority Leader Mitch McConnell. Other supporters include three Democrats on the Agriculture

Committee: Joe Donnelly of Indiana, Heidi Heitkamp of North Dakota, and Joe Manchin of West Virginia.

Barrasso’s measure includes more detailed consultation requirements than the House version and sets a Dec. 31, 2016, goal for EPA to finish a revised rule.

The White House has threatened to veto Shuster’s bill, arguing that it would “derail current efforts to clarify the scope of the CWA, hamstring future regulatory efforts, and deny businesses and communities the regulatory certainty needed to invest in projects that rely on clean water.”

However, that won’t stop the agriculture industry and other opponents from suing. Among other objections, the suits are likely to debate whether the agencies violated the Administrative Procedure Act when trying to garner support for the measure and in reviewing comments, whether the rule-making violated federal protections for small businesses, and whether the rule’s expanded oversight of waterways falls outside what Congress intended when it wrote the Clean Water Act.