Clean Water Rule broadens federal regulations

The US Environmental Protection Agency and the Army Corps of Engineers jointly released a final Clean Water Rule that significantly expands federal enforcement under the Clean Water Act. Congressional Republicans and US industries including oil and gas immediately said it goes too far.

“One in three Americans now gets drinking water from streams lacking clear protection, and businesses and industries that depend on clean water face uncertainty and delay, which costs our economy every day,” US President Barack Obama said. “Too many of our waters have been left vulnerable to pollution. That’s why I called on [EPA and the Corps] to clear up the confusion and uphold our basic duty to protect these vital resources.”

The rule assures that waters protected under the CWA are more precisely defined and determined predictably, making it less costly, easier, and quicker for businesses to obtain permits, officials said. It does not create any new permit requirements for agriculture and maintains all previous exemptions and exclusions, they emphasized.

A CWA permit will be required only if a water body is going to be polluted or destroyed, the agencies said. The rule protects only waters the CWA has covered historically, they said.

“It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows, or tile drains,” they said. “It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field. The Clean Water Rule addresses the pollution and destruction of waterways—not land use or private property rights.” The rule is effective 60 days after its publication in the Federal Register.

Protection for many of the nation’s streams and wetlands has been confusing, complex, and time-consuming following US Supreme Court decisions in 2001 and 2006, the agencies said. The rule was developed after extensive meetings with stakeholders to provide clarity on CWA protections following requests for more than a decade from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists, and the public for a rulemaking, EPA and the Corps said.

‘A critical component’

“For the water in the rivers and lakes in our communities that flow to our drinking water to be clean, the streams and wetlands that feed them need to be clean too,” EPA Administrator Gina McCarthy said. “Protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms, and warmer temperatures.”

Oil and gas industry associations and other business groups expressed immediate concern. “We’re carefully reviewing the rule,” an American Petroleum Institute spokesman said on May 27. “We’re concerned that it creates needless regulatory uncertainty around economic development—at a major cost to farmers, home builders, manufacturers, and a wide range of industries.”

Independent Petroleum Association of America Executive Vice-Pres. Lee O. Fuller said, “Increased federal jurisdiction over nearly all waters in the US will create substantial permitting and compliance burdens for few environmental benefits. The impacts of this rule go beyond American energy development.”

There are serious concerns about retroactive applications of the rulemaking and added costs on business operations, Fuller said. “This regulatory regime will result in far more significant economic impacts and unintended consequences than the Obama administration is leading the American people to believe,” he said.

William Kovacs, senior vice-president of environment, technology, and regulatory affairs at the US Chamber of Commerce, meanwhile, said, “Over the last 13 months, it has become clear that the EPA’s proposed rule would significantly broaden federal regulatory jurisdiction over private activities on land and in waterways, wetlands, and drainage ditches, and fundamentally change the scope and extent of long-standing state delegated CWA programs.”

Ignoring reality

“Since issuing the proposed rule for public comment in April 2014,” Kovacs said, “the agencies have somehow maintained that the proposal will have no significant regulatory or economic impact, and in fact [they are] is simply ‘clarifying’ the current state of federal jurisdiction over waters. Such statements fly in the face of reality.”

EPA and the Corps have expanded the federal government’s reach into manufacturers’ on-site activities under the guise of providing clarity, maintained Ross Eisenberg, vice-president of energy resources and policy for the National Association of Manufacturers.

“As of today, if you have a stream on your property that only flows when it rains, you have a ‘Water of the United States,’” he said. “If you have a pond that happens to be near another covered water, you have a ‘Water of the United States.’ If you have certain types of ditches, you have ‘Waters of the United States’ on your property. This all adds up to increased regulatory uncertainty, permitting costs, delays and even litigation, not to mention a giant new set of hurdles standing in the way of construction,” he said.

Congressional Republicans angrily denounced the rule as another federal regulatory intrusion that will do more harm than good. No one was angrier than Senate Energy and Natural Resources Chair Lisa Murkowski (R-Alas.). “Nowhere is the impact more likely than in Alaska…which has more than half the wetlands in the US,” she said.

Murkowski said the rule is so broad that it could also apply to areas of permafrost that become wetlands during the short summer months, or any other patch of land statewide where water could potentially wash across during the year. She also criticized EPA for paying lip service to the concerns of state officials and local stakeholders without offering any real relief as it issued the final rule.

Contact Nick Snow at nicks@pennwell.com.

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