The White House on Wednesday finalized a rule intended to strengthen and clarify the Clean Water Act, setting up a clash with Republicans in Congress and the agriculture industry.
The rule is designed to help federal officials clarify and simplify which bodies of water fall under the control of the Clean Water Act, the pivotal 1972 environmental law.
Gina McCarthy, administrator of the U.S. Environmental Protection Agency – which along with the U.S. Army Corps of Engineers proposed the rule – said Wednesday’s action was not a power grab by federal officials, despite persistent claims to the contrary. She said it was a necessary action to keep the nation’s waters clean and its drinking supplies clear.
Added Brian Deese, a White House senior adviser who announced the rule along with EPA and Army Corps officials: “There is a lot of misinformation about what this rule does and doesn’t do. But what becomes clear … is that the only people with reason to oppose the rule are polluters who knowingly threaten our clean water.”
In a statement, Kansas Gov. Sam Brownback said, “This final rule from the EPA continues a pattern of federal overreach, by asserting broader federal jurisdiction over local water and land use.
“We will carefully review this rule to understand the full effect of this encroachment into an area where states should – and are – taking the lead to protect and preserve water quality. Such an expansion of the EPA’s regulatory power will have a significant, negative effect on Kansas.”
Known initially as the “Waters of the United States” rule, it was first out in draft form in early 2014. From the start Republicans, farmers, developers and other business interests had opposed it, calling it a massive overreach by federal regulators.
Supporters, such as the environmental group Natural Resources Defense Council, called the rule “a significant fix” for tens of millions of acres of wetlands and thousands of streams that contribute to the drinking water for 117 million Americans.
The rule is designed to clarify the kinds of waterways that are subject to Clean Water Act protection – and therefore the permits required for building on or polluting into a protected waterway. For example, certain kinds of land formations that are only wet part of the year could be brought under Clean Water Act jurisdiction.
The EPA said the affected areas would be relatively small in number. Opponents said that the agency is underestimating the impact and that the rule could expose farmers and others to major costs and hassles as they seek to use or build on lands that are not now covered.
Deluge of comments
The EPA and the Army Corps were caught in a deluge of comments on the issue – more than 1 million in all. The EPA said it was caught by surprise by parts of the push-back, and McCarthy said in November that she was “not prepared for … criticism that we did no outreach before we put the rule out.”
The rule was proposed by the agencies to simplify and clarify the meaning of the 1972 Clean Water Act. That law covers rivers, lakes and year-round wetlands. But what about certain streams that dry up part of the year? Or wetlands that are only wet during springtime months?
The rule is intended to take into consideration two U.S. Supreme Court cases from the 2000s and to lay out standards for which waters should be covered.
The Clean Water Act requires permits for developing or discharging into covered waters, making the rule of vital importance to farmers, and to landowners in general.
Despite the fact that this is a final rule, to be effective 60 days after formal publication, the battle is far from over. Republicans in Congress have sought to kill it, and legislation to block it has already passed the House of Representatives and is pending in the Senate. The Senate legislation has 30 co-sponsors – mostly Republicans but three Democrats.
If this bill does pass both chambers, it faces a possible veto from President Obama.
Responding to the House bill last month, the White House said the EPA and the Army Corps “have sought the views of and listened carefully to the public throughout the extensive public engagement process for this rule. It would be imprudent to dismiss the years of work that have already occurred and no value would be added. … If the president were presented with H.R. 1732, his senior advisers would recommend that he veto the bill.”
The American Farm Bureau Federation had a campaign to “Ditch the Rule,” so named because of fears the EPA would now be in the business of regulating roadside ditches. And the EPA responded with a “Ditch the Myth” page, seeking to respond to farmers’ and others’ concerns.
In its material on the rule, as well as a Wednesday morning press call, McCarthy and others stressed that the bill was not a major expansion of federal authority; merely a clarification of the kinds of waters that could fall under the Clean Water Act.
McCarthy said that the EPA and the Army Corps expect that a very small number of additional waters will be found jurisdictional compared with current practice. Opponents of the rule have called the EPA’s estimates laughably small, but until the rule is put into practice in coming years it will be hard to precisely know what the actual increase is.