The Obama administration released a long awaited regulatory proposal that would bring nearly all rivers, streams and creeks under the jurisdiction of the Clean Water Act (CWA) and would clarify which wetlands would be included.
The proposed rule is aimed at clarifying which streams, creeks and wetlands fall under the jurisdiction of the CWA following two Supreme Court decisions, in ’01 and ’06, that left both industry and EPA in regulatory confusion.
The proposed rule would place all tributaries -- including those that flow only seasonally or when it rains -- under federal jurisdiction, meaning that a permit would be required for anyone who wanted to fill those areas or discharge pollution into them.
The Court's ’06 decision in Rapanos v. United States put inclusions for "intermittent" and "ephemeral" streams into question, and, in many places, they simply have not been regulated. EPA says about 60% of US stream miles fall into the "intermittent" category. Many of these streams are in the western United States. A ’08 EPA study says 94% of Arizona's streams don't flow year-round, 89% of Nevada's are dry most of the year, and 88% of New Mexico's are not perennial. These intermittent streams will now fall under CWA jurisdiction.
Geographically isolated wetlands such as playa lakes also have been questionable under the two Court decisions. Under this proposed rule, wetlands that are adjacent to jurisdictional waters would be regulated, but geographically isolated wetlands would still require a regulator to decide on a case-by-case basis whether it significantly affects factors such as flooding, pollution or species downstream.
The rule is a major win for environmental groups and sportsmen who support a broader take on federal jurisdiction. However, the proposal would have major impacts for homebuilders, oil and gas companies, and agribusinesses that have been pushing back since the rulemaking effort began.
Open to interpretation
The Obama administration is making a concerted effort to reach out to opponents of the rule, particularly those in agriculture. Along with the proposed rule, EPA put out a separate document emphasizing that the proposed rule would maintain all current exemptions for agriculture and includes a list of 53 additional exemptions from permit requirements for agricultural conservation practices that EPA developed in conjunction with USDA.
Critics point out, however, that this is an interpretative rule which can be changed without due process.
Congressional Republicans have been quick to criticize the proposal. "The 'waters of the U.S.' rule may be one of the most significant private property grabs in U.S. history," Sen. Vitter (R-LA), the top Republican on the Senate Environment and Public Works Committee, said in a statement.
During a FY15 budget hearing of the House Appropriations’ Interior, Environment, and Related Agencies Subcommittee, EPA Administrator Gina McCarthy received a number of questions and concerns about the rule.
"The only certainty I see comes in the form of more mandatory permits for the jurisdictional waterways," Subcommittee Chairman Calvert (R-CA) said. House Appropriations Committee Chairman Rogers (R-KY) called it "the biggest land grab in the history of the world."
More information is at www.epa.gov/uswaters .