On June 3, the Obama administration released its finalized Clean Water Rule (CWR), extending regulatory protection to smaller upstream rivers and creeks, much to the dismay of the oil and gas industry and manufacturers. Following the ruling, Barry Russell, president and CEO of IPAA disseminated a letter regarding the increased federal jurisdiction and the implications to the oil and gas industry.
Dear IPAA Members and Colleagues:
Last week, the US Environmental Protection Agency (EPA) and US Army Corps of Engineers (USACE) released the final rulemaking redefining Waters of the United States (WOTUS) for Clean Water Act (CWA) purposes. This new regulation increases federal jurisdiction over nearly all waters in the United States, such as small streams and wetlands. Implementation of the final rule will result in significant permitting requirements and compliance burdens with few environmental benefits.
IPAA has developed a Task Force comprised of IPAA member company representatives to provide technical feedback regarding impacts of the WOTUS rule on oil and natural gas exploration and production activities. Additionally, IPAA works with other impacted stake holders to advocate against an unwarranted expansion of federal jurisdiction over our nation's waters. Specifically, IPAA is a member of the Waters Advocacy Coalition (WAC), which is a multi-stakeholder coalition that advocates for responsible regulation to meet our nation's clean water objectives. Through IPAA's participation in WAC, IPAA is developing a coordinated strategy and response across all industry sectors to the final WOTUS rule.
Background on WOTUS. The issue of defining federal jurisdiction over our nation's waters has existed for decades. Congress passed the Federal Water Pollution Control Act Amendments of 1972 (commonly referred to as the Clean Water Act (CWA)) to address pollution of the nation's rivers, lakes, streams and ocean waters, with the ultimate goal of eliminating all discharges of pollutants into those waters. The CWA regulates the discharges of pollutants into the "waters of the United States" from municipal, industrial and other sources (e.g., persons filling wetlands). The CWA also includes provisions that are designed to prevent spills of oil and hazardous substances from entering and contaminating national waterways and that assign liability for cleaning up spills that do occur.
The determination of what constitutes a water of the United States governs the scope of the agencies' authority under a variety of CWA programs, including the Spill Prevention, Control, and Countermeasure (SPCC), the National Pollutant Discharge Elimination System (NPDES) program and the Section 404 dredge and fill program.
The critical policy issue relating to WOTUS – what should be the outer geographic limit of CWA jurisdiction and what are the consequences of restricting the scope of regulatory protection under the act – has challenged regulators, landowners and developers, and policymakers for more than 40 years.
Advocacy Efforts. IPAA submitted extensive comments on the proposed rulemaking defining WOTUS. Those comments are available on IPAA's website. Additionally, IPAA participates in WAC to advocate against the expansion of federal jurisdiction beyond the original congressional intent of the CWA. As part of this effort, IPAA and WAC meet with policymakers on Capitol Hill to inform them of the true operational and economic impacts accompanying the EPA/USACE rule on WOTUS.
Moreover, IPAA and WAC have supported congressional legislative efforts to reign in the EPA/USACE WOTUS rulemaking. For example, on May 12, 2015, the U.S. House of Representatives passed H.R. 1732, the Regulatory Integrity Protection Act which withdraws the rulemaking, requires stakeholder consultations and develops a new proposed rule based on these consultations and earlier comments.
Since the EPA/USACE May 2015 rule defining WOTUS is a final rule, there will not be an opportunity to provide additional comments. IPAA is working with its member companies to identify ambiguities and questions under the rule and will seek clarity from EPA and the USACE. Additionally, IPAA will follow legal challenges to the final rule as they develop.
If you have any questions, please feel free to contact us. Thanks you for your support.
President and CEO, IPAA