Energy & Environment

Business boiled over EPA’s water rule

Greg Nash

Business groups are joining with local government representatives and conservative lawmakers to criticize the Environmental Protection Agency’s water jurisdiction proposal, imploring the Obama administration to rescind it.

Opponents of the proposed rule say the EPA’s effort to redefine its authority over creeks, ponds and wetlands is written so broadly that it could put millions of new miles of rivers and streams under federal control, along with ditches, puddles and dry creek beds.

{mosads}Such a change would be a major impediment to commerce, as businesses could suddenly need permits for all manner of routine activities like building fences or digging ditches, they charge. The effort by the EPA and the Army Corps of Engineers would muddy the waters for landowners and others already confused over whether they need permits, representatives said.

“The proposed rule provides none of the clarity and certainty it promises,” the American Farm Bureau Federation wrote in comments to the EPA, which were due Friday.

“Instead, it creates confusion and risk by providing the agencies with almost unlimited authority to regulate, at their discretion, any low spot where rainwater collects, including common farm ditches, ephemeral drainages, agricultural ponds, and isolated wetlands found in and near farms and ranches across the nation,” the group said in a document signed by dozens of other agricultural associations.

The industry that supplies stone for paving, building and industrial uses said it would feel detrimental effects from the EPA’s rule.

“If adopted as proposed, the practical implications of implementing this rule will be felt throughout the United States, especially in the aggregates industry,” said the National Stone, Sand and Gravel Association.

“Styled as a clarification and narrowing of the prior regulatory definition, the proposed rule would effectively increase the geographic reach of the [Clean Water Act] by expanding the reach of CWA jurisdiction over marginally wet intermittent and ephemeral waters, isolated open waters and wetlands by directing field staff to apply a watershed based approach without the need to gather site-specific data and analysis,” the group said.

The EPA proposed the rule in March to redefine and clarify the reach of its jurisdiction under the Clean Water Act, the main law meant to protect the country’s waterways from pollution.

After two Supreme Court decisions with different rulings on how the EPA enforces its authority, the agency felt it was necessary to provide certainty about smaller waterways like ponds, creeks and wetlands that feed into bigger bodies of water.

The agency estimated that its jurisdiction would only increase marginally.

Almost immediately, the EPA’s proposal was labeled as a massive expansion of federal power and a brazen “land grab.”

The House held multiple hearings to highlight the rule’s predicted effects, and it voted in September to force the EPA to retract the rule and go back to the drawing board. So far, that hasn’t deterred EPA officials.

The EPA had processed nearly 500,000 comments on the proposal as of Monday and was expecting to process even more.

The farm and stone groups joined more than 300 other business groups on a regulatory filing by the Chamber of Commerce that included retailers, contractors and transportation groups opposed to the rule.

“At the most fundamental level, the proposal as written represents an unjustified expansion of Clean Water Act jurisdiction far beyond the limits of federal regulation explicitly established by Congress and affirmed by the courts,” the Chamber said. “The proposal would, for the first time, give federal agencies direct authority over land use decisions that Congress has intentionally reserved to the states.”

Local and state government officials piled on.

“We believe that more roadside ditches, flood control channels and stormwater management conveyances and treatment approaches will be federally regulated under this proposal,” wrote the National Association of Counties.

“This is problematic because counties are ultimately liable for maintaining the integrity of these ditches, channels, conveyances and treatment approaches,” it said, adding that the rule would affect many Clean Water Act programs that counties participate in, including spill prevention, and dredge and fill permits.

Iowa Gov. Terry Branstad (R) brought in officials from West Virginia, Kansas, Louisiana, Oklahoma and seven other states for his comments.

“The overriding concern of a diverse group of impacted stakeholders, including state leaders, is that the proposed rule will impose significant barriers to the advancement of innovative, state- and local-driven conservation and environmental practices that would actually advance our common goal of water quality,” he wrote.

Leading GOP congressional overseers of the EPA registered their complaints too.

Sen. David Vitter (R-La.) and Rep. Bill Shuster (R-Pa.) wrote that the rule “presents a grave threat to Americans’ property rights, and its finalization will force landowners throughout the country to live with the unending prospect that their homes, farms, or communities could be subject to ruinous Clean Water Act jurisdictional determinations and litigation.”

Vitter, the top Republican in the Senate Environment and Public Works Committee, and Shuster, chairman of the House Transportation and Infrastructure Committee, were joined by eight of their Republican colleagues with roles overseeing various environmental policies.

Numerous environmental groups teamed up to submit one coalition response in support of the rule, framing it as an essential step toward better protecting water from pollution.

“We applaud the administration’s efforts to protect our waterways from pollution,” wrote the groups, including the Natural Resources Defense Council and the League of Conservation Voters. “This proposed rule will help to improve the condition of the nation’s waters, and we strongly support EPA’s and the Corps’ efforts to clarify which waters are protected by the Clean Water Act.”

The green groups also organized mass comment drives that they say resulted in 800,000 comments submitted to the EPA in support of the rule.

EPA spokeswoman Monica Lee said the agency plans to make the rule final in the spring after reading the comments and making any necessary changes.

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