The Obama administration unveiled its long-awaited finalized Clean Water Rule (CWR) on Wednesday, extending regulatory protection to smaller upstream rivers and creeks, but doing so against the wishes of the oil and gas industry, manufacturers and their Republican allies in Congress.
The CWR, which was created by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (USACE), clarifies the definition of what constitutes Waters of the United States (WOTUS) and therefore what deserves protection under the Clean Water Act (CWA).
In a statement, Obama said “too many of our waters have been left vulnerable to pollution,” and added that the CWR would “restore protection for the streams and wetlands that form the foundation of our nation’s water resources, without getting in the way of farming, ranching, or forestry.
“This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the CWA, and it will ensure polluters who knowingly threaten our waters can be held accountable.”
The EPA and the Army Corps called the rule an “historic step” to protect clean water from pollution and degradation in streams and wetlands throughout the nation. It is supposed to more “precisely define” the protected waters, and supposedly would make permitting for businesses and industry “easier, faster and less costly.”
“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 in signing the controversial new package.
The rule will take effect 60 days after its publication in the Federal Register.
Manufacturers Weigh In
Reaction was swift.
“From ditches to ponds to creeks, this regulation will expand the administration’s regulatory reach even further into the operations of manufacturers, farmers and small businesses,” said Ross Eisenberg, a vice president of the National Association of Manufacturers. “Protecting our nation’s waters is a priority for manufacturers, but we need a balanced regulatory approach that provides a fair and transparent process. Today, we got the opposite.”
The new rule, when coupled with proposed regulations on greenhouse gas emissions, would put a $2 trillion per year regulatory burden on manufacturers, Eisenberg said.
“I am disappointed at the lack of consideration for the law and procedure,” said Wyoming Gov. Matt Mead, alleging that McCarthy’s signing of the new measure “ignored” requests by his state and others to consult more closely with the states in crafting the rule.
“This rule has wide-ranging impact, and I am frustrated that the EPA has again stepped out of the bounds of its authority and has disregarded the role and concerns of the states.”
Sen. John Hoeven (R-ND) echoed Mead’s comments, contending that the rule creates uncertainty for farmers, ranches and other job creators, such as the oil and gas industry. “We will continue our efforts [in Congress] to either rescind the rule through legislation or defund it through the appropriations process.”
What the Rule Says
According to the EPA, the proposed WOTUS definition would include all territorial seas, interstate waters and wetlands and all waters that are currently being used — or which were used in the past or which may be susceptible for use in interstate or foreign commerce — including all waters subject to the ebb and flow of the tide. It also includes certain impoundments, tributaries and adjacent waters, including wetlands.
The proposed WOTUS rule does not include groundwater, including groundwater drained through subsurface drainage systems. It also excludes waste treatment systems, prior converted cropland, some ditches and other structures, including artificially irrigated areas; artificial lakes and ponds; artificial reflecting pools, swimming pools and small ornamental waters created by excavation or dikes; water-filled depressions created by construction activity; and gullies, rills and non-wetland swales.
The rule also clarifies the definitions for adjacent and neighboring waters, riparian areas, floodplains, tributaries and wetlands. It defines the “significant nexus” concept as “water, including wetlands, either alone or in combination with other similarly situated waters in the region…[that] significantly affects the chemical, physical, or biological integrity of a [certain] water…
“For an effect to be significant, it must be more than speculative or insubstantial.”
Oil/Gas Industry, GOP Reaction
The oil and gas industry reacted negatively to the rule. Lee Fuller, executive vice president for the Independent Petroleum Association of America, said the rule would have consequences beyond harming development of the nation’s energy resources.
“It comes as little surprise that this long-awaited final rule significantly expands the federal government’s authority over land and water use across the nation, affecting all American landowners,” Fuller said. “From farming to golf course management and home building to energy development, this new federal mandate will require landowners to obtain additional government permits and fulfill bureaucratic regulatory requirements.
“Increased federal jurisdiction over nearly all waters in the United States will create substantial permitting and compliance burdens for few environmental benefits…There are serious concerns about retroactive applications of the rulemaking and added costs on business operations.”
Republican lawmakers derided the rule as an overreach by the federal government. Sen. Lisa Murkowski (R-AK), who chairs the Senate Energy and Natural Resources Committee, said the rule was so broad it could be applied to permafrost in her state, which becomes wetlands during the short summer season.
“EPA officials have been on a public relations campaign as of late to generate support for their rule,” Murkowski said. “I wish the administration had instead spent their time and focus listening to Alaskans and others across the country about the serious issues this rule poses, and made changes to bring certainty to the permitting process.”
Sen. John Barrasso (R-WY) concurred. “Instead of reaching a reasonable solution…the EPA has ignored millions of Americans and taken more control over private land in our country. There is bipartisan agreement that Washington bureaucrats have gone beyond their authority and have no business regulating irrigation ditches, isolated ponds and other ‘non-navigable’ waters as WOTUS. “
Barrasso and a bipartisan coalition of other senators — Joe Donnelly (D-IN), Jim Inhofe (R-OK), Heidi Heitkamp, (D-ND), Pat Roberts (R-KS) and Joe Manchin (D-WV) — have sponsored S 1140, a bill that would limit the rule’s scope (see Shale Daily, April 30).
The EPA and the USACE drafted the rule after holding more than 400 public meetings across the country and receiving more than one million comments in the process (see Shale Daily, April 7). The agencies claim the CWR is necessary because Supreme Court rulings in 2001 and 2006 created confusion over how the CWA should protect streams and wetlands (see Daily GPI, March 26, 2014).
On May 1, the House of Representatives passed a $35.4 billion energy and water appropriations bill that includes a rider preventing USACE from attempting to “develop, adopt, implement, administer or enforce any change to the regulations and guidance in effect on Oct. 1, 2012, pertaining to the definition of waters under the jurisdiction of the Federal Water Pollution Control Act…” (see Shale Daily, May 1; April 23; April 15).
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