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EPA, Corps Say Rule to Clarify CWA Moving Forward

Officials with the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE) said a rule designed to clarify the federal Clean Water Act (CWA) has been sent to an office within the White House and is moving toward finalization later this spring.

But many Republicans and industry groups oppose the CWR on the grounds that it amounts to government overreach, and that it would negatively impact domestic oil and gas production, increase permitting delays for wells and increase drilling costs.

In a joint statement posted to an EPA blog on Monday, EPA Administrator Gina McCarthy and Jo-Ellen Darcy, assistant secretary of the Army (Civil Works), said a draft version of the Clean Water Rule (CWR) was sent to the Office of Management and Budget on April 3.

Last year, EPA and USACE said Supreme Court rulings in 2001 and 2006 had created confusion over how the CWA should protect streams and wetlands (see Daily GPI, March 26, 2014).

Although McCarthy and Darcy said they couldn't "speak to every detail" about the CWR, they did say the rule would better define the significance of protecting waters, and define tributaries more clearly.

"A key part of the CWR is protecting water bodies, like streams and wetlands, which have strong impacts downstream; the technical term is 'significant nexus,'" McCarthy and Darcy said. "We will respond to requests for a better description of what connections are important under the CWA and how agencies make that determination.

"We've heard feedback that our proposed definition of tributaries was confusing and ambiguous, and could be interpreted to pick up erosion in a farmer's field, when that's not our aim. So we looked at ways to refine that definition, be precise about the streams we're talking about, and make sure there are bright lines around exactly what we mean."

The officials said they have also heard complaints that the CWA category for "other waters" was too broad and undefined. "We've thought through ways to be more specific about the waters that are important to protect, instead of what we do now, which too often is for the USACE to go through a long, complicated, case-by-case process to decide whether waters are protected," they said.

McCarthy and Darcy said that under the CWR, ditches that function like tributaries -- including those constructed out of streams -- and carry polluted waters downstream, would receive some protection. They added that exclusions and exemptions under the CWA for agriculture would be maintained.

"Our proposal talked about upland ditches, and we got feedback that the word 'upland' was confusing, so we'll approach ditches from another angle," the officials said. They added that their agencies "will protect clean water without getting in the way of farming and ranching. Normal agriculture practices like plowing, planting and harvesting a field have always been exempt from CWA regulation; this rule won't change that at all."

According to McCarthy and Darcy, EPA and USACE have held more than 400 public meetings across the country to discuss the proposed CWR, receiving more than 1 million comments in the process. They said some state and local governments asked questions about waters within areas that have separate municipal and storm sewer systems.

"We listened carefully as we did not intend to change how those waters are treated and have considered ways to address this concern," the officials said. "We will also continue to encourage the use of creative solutions like green infrastructure and low-impact development, as many of these communities have advocated."

Opposition to the CWR has been building since it was first proposed last year. In December, U.S. Sen. David Vitter (R-LA), a member of the Senate Environment and Public Works Committee, filed an amicus brief in support of bringing a case -- Kent Recycling Services LLC v. USACE -- to the Supreme Court.

"The Obama administration is slowly destroying private property rights and hurting landowners in Louisiana and across the United States," Vitter said at the time. "And they aren't just nickel-and-diming folks; we're talking huge fees and fines which could bankrupt some people or businesses. That's why it is crucial to keep fighting this disturbing pro-government control outcome. As EPA and the USACE look to unjustly expand their authority through the proposed [CWR], we need to protect the rights of private property owners."

In a letter to the EPA, two advisors for the American Petroleum Institute (API) said it would be "arbitrary and capricious" for the two agencies to move forward with the CWR, and urged them to withdraw the proposal, and to then reissue it with several fixes.

According to API, the CWR "could also have unintended environmental consequences by impacting access to the abundant, domestic natural gas that has contributed to carbon dioxide reductions in recent years or creating permitting difficulties that apply to energy projects with larger footprints (i.e., wind and solar) and related transmission infrastructure," Roger Claff and Amy Emmert wrote in the letter sent last November.

In a report commissioned by API last November, the consulting firm Arcadis said the first year of CWR's implementation would harm American oil and natural gas production. By Arcardis' estimate, production would decline by 229,000 b/d of oil and 1.37 Bcf/d of natural gas. The report also estimated that 1,215 wells would face permitting delays, and the average cost of a well would rise to about $5 million, assuming 2013 average well costs.

Some organizations support the CWR. On its website, the American Sustainable Business Council (ASBC) -- which represents more than 200,000 businesses -- said "the American economy depends on clean water for manufacturing, food production, safe drinking water and more. Businesses need clean water to operate, and workers and consumers need clean water so they can work productively and conduct their lives in confidence, comfort and safety.

"The proposed [CWR provide] a consistent regulatory framework; it gives business confidence that American streams and rivers will remain available to all."

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