US EPA’s final ‘waters’ rule seen as a ‘naked power grab’

Joe Kamalick

27-May-2015

US EPAWASHINGTON (ICIS)–The Environmental Protection Agency (EPA) on Wednesday issued its final clean waters rule, a regulatory move that business groups and local governments have labelled a “naked power grab.”

In announcing its final “Waters of the United States” (WOTUS) rule, the EPA and the US Army Corps of Engineers (Army Corps) said the regulation “ensures that waters protected under the Clean Water Act [CWA] are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry”.

“The rule is grounded in law and the latest science, and is shaped by public input,” the EPA said.

Addressing a major complaint among business and farming interests, the EPA said “the rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions”.

“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,” said EPA administrator Gina McCarthy.

McCarthy linked the new WOTUS rule to the Obama administration’s broad campaign to combat what it sees as a major environmental threat posed by man-made global warming.

“Protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms and warmer temperatures,” she said.

The EPA and Army Corps jointly proposed WOTUS on 25 March last year “to clarify protection under the CWA for streams and wetlands that form the foundation of the nation’s water resources”.

Broadly defined, the CWA gives the agencies jurisdiction over “navigable waters” of the US, also cited as “waters of the United States” in EPA parlance.

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

But multiple business and industry representatives quickly condemned the EPA move, charging that it “would increase federal regulatory power over private property and would lead to increased litigation, permit requirements and lengthy delays” for property use or development.

A group of 375 trade associations, chambers of commerce and a wide range of industrial, manufacturing and agricultural interests charged in a letter to the EPA that its proposed WOTUS rule expansion is an effort to establish central federal control over land uses nationwide.

In a detailed formal comment to the EPA authored in part by the American Fuel & Petrochemical Manufacturers (AFPM), the business and industry coalition said the rule “is really about the agencies’ overreaching attempt to replace longstanding state and local control of land uses near water with centralised federal control”.

In those comments, US Chamber of Commerce senior vice president for environment William Kovacs warned, “If the proposed rule becomes final, EPA’s revision of the definition of ‘waters of the US’ would expand its regulatory jurisdiction to almost all waters of the US, including ditches, ponds and streams.”

Senator John Barrasso (Republican-Wyoming), an outspoken opponent of the WOTUS rule, said on Wednesday it “has taken more control over private land in our country”.

“Under this outrageously broad rule,” he said, “Washington will have control over how family farmers, ranchers and small businesses not only use their water, but also their privately owned land.”

Barrasso indicated that EPA’s issuance of its final WOTUS rule will trigger renewed efforts in Congress to overturn the regulation.

Paul Hodges studies key influences shaping the chemical industry in Chemicals and the Economy

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