INSIGHT: Bipartisan barrage blasts new EPA waters rule

27 March 2014 17:38 Source:ICIS News

By Joe Kamalick

EPA accused of new power grabWASHINGTON (ICIS)--A new Environmental Protection Agency (EPA) bid to widen its authority over even the smallest waterways, ponds and rainwater ditches came under sharp attack this week by industry and agricultural groups and bipartisan members of Congress.

Senator Mary Landrieu (Democrat-Louisiana), chairwoman of the Senate Energy and Natural Resources Committee, charged that the proposed EPA rule governing its regulation of waterways and wetlands is “yet another example of this agency overreaching and stepping outside of its bounds without thought to the economic consequences of its actions”.

“This decision lacks common sense and will hamper our nation’s efforts to increase domestic energy production,” Landrieu said, promising that she “will work with colleagues on both sides of the aisle to find a legislative solution to reverse this unfair, unwise and unnecessary decision”.

Landrieu joined other members of Congress and a growing coalition of energy, agricultural, agrochemical, contractor and general manufacturing interests in seeking to thwart what one congressman called “the largest expansion ever of EPA’s authority to regulate private property”.

The furore erupted on Tuesday when EPA and the US Army Corps of Engineers (Army Corps) jointly issued a proposed rule under the 1972 Clean Water Act (CWA) “to clarify protection under the CWA for streams and wetlands that form the foundation of the nation’s water resources”.

The Army Corps is involved because it has jurisdiction over federal waterways for operations, maintenance and improvements.

The clarification was needed, said EPA, because US Supreme Court rulings in 2001 and 2006 complicated the application of the act to a variety of undertakings and construction situations.

“For nearly a decade, members of Congress, state and local officials, industry, agriculture, environmental groups and the public asked for a rulemaking to provide clarity,” EPA said, adding that the rule proposed on Tuesday would meet that goal.

But Congressman Lamar Smith (Republican-Texas), chairman of the House Science, Space and Technology Committee, immediately pounced on the EPA’s move.

“As expected, the EPA’s proposed water rule expands the agency’s control over natural and man-made streams, lakes, ponds and wetlands,” Smith said.

“If approved, this rule could allow the EPA to regulate virtually every body of water in the US,” he said, adding that in putting out the proposed rule “EPA failed to incorporate adequate peer-reviewed science in accordance with the agency’s own statutory obligations.”

“It is troubling that the administration proposed this expansion before its independent science advisors have had the chance to complete their review of the underlying science,” Smith said.

“The Obama administration continues to sidestep scientific integrity in order to fast-track an abusive regulatory agenda,” he added.

There was speculation that EPA moved ahead with its new waters rule without completing the mandatory scientific reviews in hopes of getting the rule made final before the US elections in November.

There is general expectation that Republicans may win majority control of the Senate, now held by Democrats. If that were to happen, in 2015-2016 the White House and administration regulatory agencies would be facing a Congress with Republicans in control in both the Senate and the House and poised to begin rolling back a range of EPA actions and other administration initiatives.

EPA insisted that its proposed rule “does not protect any new types of waters, does not expand jurisdiction over ditches and does not broaden coverage of the Clean Water Act”, but that claim was broadly challenged.

Congressman Bill Shuster (Republican-Pennsylvania), chairman of the House Transportation and Infrastructure Committee,  said he “strongly condemned” what he termed “President Obama’s latest effort to dramatically increase federal regulatory authority over bodies of water in the US”.

Shuster noted that the Clean Water Act by design gives EPA authority to govern and regulate “navigable waterways”, a statutory definition specifically meant to exempt smaller bodies of water such as wetlands and backyard ponds.

“The Obama administration now seeks to expand that definition to include a range of new areas, including creeks and other water found on private property,” he said.

“This is a massive power grab by the government, and would give the EPA regulatory power over nearly every body of water in America,” he said, adding that “We cannot allow that to happen.”

The EPA’s new water rule, he said, “is part of a disturbing trend in an imperial presidency that seeks to ignore Congress and force Obama’s reckless agenda into law”.

Senator David Vitter of Louisiana, ranking Republican on the Senate Environment and Public Works Committee, also had harsh words for the EPA move, saying that the proposed rule “may be one of the most significant private property grabs in US history”.

He charged that the agency was seeking nothing less than “outright permitting authority over virtually any wet area in the country, while at the same time providing a new tool for environmental groups to sue private property owners” to block projects or development on any land.

The multi-industry Waters Advocacy Coalition (WAC) noted that EPA is obliged to adhere to relevant US Supreme Court rulings that “decisively put the agency on notice that Congress imposed limits to federal jurisdiction in this area”.

The 36 WAC member organisations include, among others, the American Petroleum Institute (API), the American Gas Association (AGA), the American Farm Bureau Federation (AFBF), CropLife America, The Fertiliser Institute (TFI), the National Association of Manufacturers (NAM) and the National Association of Home Builders (NAHB).

For its part, the NAHB charged that the proposed EPA waters rule will impede housing development and raise costs generally.

NAHB warned that EPA has unnecessarily and broadly expanded the definitions of regulated streams and wetlands in a decision that also could negatively impact the agriculture and livestock industries.

NAHB president Kevin Kelly agreed that while home builders and a broad coalition of business interests had pressed EPA for a clarifying rule, “EPA’s proposal goes too far”.

Rather than clarify discrepancies in the agency’s regulations and the Supreme Court rulings, Kelly said: “Instead, EPA has added just about everything into its jurisdiction by expanding the definition of a ‘tributary’.”

Under the proposed rule, said Kelly, “even ditches and manmade canals, or any other feature that a regulator determines to have a bed, bank and high-water mark” will be subject to oversight by the agency, permitting and other requirements that will delay and even prevent housing development.

“It is a waste of taxpayer resources to treat a rainwater ditch with the same scrutiny as we would the Delaware Bay,” Kelly said.

But EPA administrator Gina McCarthy argued that the proposed rule is appropriate because “The health of rivers, lakes, bays and coastal waters depend on the streams and wetlands where they begin”.

Kelly warned that the rule, if made final as proposed, will “greatly increase the number of construction sites required to obtain appropriate permits, which will also result in delay or impede construction projects”.

He noted that the agency is already facing an “exorbitant backlog of permits, ranging between 15,000 and 20,000”.

As have others, Kelly noted that the CWA initially was enacted to protect navigable rivers and those used for interstate commerce, but that EPA regulation under the law has steadily crept further upstream.

He said that the proposed rule also will impact operations of farmers and ranchers who raise livestock.

“Even home owners could need wetlands permits before doing landscaping projects,” he said, if EPA regulators determine that their land includes a “tributary” subject to CWA jurisdiction.

The US Chamber of Commerce also raised an alarm over the EPA action, charging that “For decades, the EPA has been attempting to expand its jurisdiction over waters of the US, but the Supreme Court has held it in check through key rulings”.

“This latest attempt from EPA to make virtually every river, stream, and creek in the US subject to the authority of the Clean Water Act would put the agency effectively in charge of zoning the entire country,” the Chamber said.

“This proposed definition would more than double the miles of waterway EPA regulates, which would have serious economic repercussions,” the Chamber added, saying that it would contest the proposed rule.

NAHB also said that it would challenge the proposed rule in comments to the agency.

The proposed rule is subject to a 90-day period of public comment and likely will be made final later this year.

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By Joe Kamalick