EPA poised to issue landmark water regulations


The Obama administration is about to unveil an ambitious — and hotly disputed — plan to strengthen its authority over minor water bodies like wetlands, streams and ponds.

The Environmental Protection Agency’s (EPA) “waters of the United States” regulation, expected to be issued in the coming days, has become one of the most controversial environmental regulations of the Obama presidency, with some of the strongest lobbying forces in Washington staking out positions.

The rule dubbed WOTUS in environmental and business circles could indelibly change how the federal government fights pollution and protects water for drinking, navigation, wildlife and other uses under the 1972 Clean Water Act.

At the center of the debate among regulators, Congress, industry and green groups is how far upstream — and into the lives of people and operations of businesses — the EPA can and should go to keep safe and clean the nation’s prized waterways.

There is also sharp disagreement over what the EPA’s proposed rule, unveiled last March, would actually do.

The EPA, Democrats and their supporters frame it as a clarification that would only add 3 percent to the area of its jurisdiction. Meanwhile, the agency would protect important wetlands, headwaters and other water bodies whose statuses have become unclear after a pair of convoluted Supreme Court decisions.

Republicans, farmers, developers, miners, paper manufacturers and their allies have labeled it a massive federal land grab so vaguely written — at least in a draft version — that it would expand the EPA’s jurisdiction to ditches, dry creekbeds, puddles, soggy ground and industrial ponds.

That would make those areas subject to federal water quality standards and potentially require permits for any activity that would change or harm them, cementing central federal control over all matter of private business, opponents say.

More than four decades after Cleveland’s Cuyahoga River caught fire and spurred a nationwide push for water safeguards, everybody involved says that they appreciate clean water and support efforts to protect it. But the argument over WOTUS has forced policymakers to decide how far those efforts should go.

“We believe the result of this rulemaking will be to improve the process for making jurisdictional determinations under the Clean Water Act by minimizing delays and costs to make protections of the nation’s clean waters more effective and to improve predictability and consistency for landowners,” EPA Administrator Gina McCarthy said in a massive joint House-Senate hearing on the rule in February.

“The foundation of the agency’s rulemaking effort to clarify protections under the Clean Water Act is the goal of providing clean and safe water for all Americans.”

Greens have been helping the administration make its case for the rule in recent months.

“We obviously strongly support it,” said Jon Devine, a Natural Resources Defense Council attorney specializing in water.

“The primary reason being that it restores guaranteed protections to a vast number of waters that today are in this legal limbo about whether they’re in or out, and at least gave a fighting chance for certain waters that today are being ignored,” he said. “That was a significant step forward in our view, and if the final rule reflects that, that’s certainly what we’ll be saying about it.”

But business groups have not been put at ease by the massive public relations campaigns from the EPA and greens assuring them that the rule would not be detrimental to them.

“Our members are scared to death of it, because their property is their business in many cases,” said Jack Mozloom, a spokesman for the National Federation of Independent Businesses.

“They’re accustomed to dealing with their respective state environmental enforcement agencies, and this adds an entirely new and disturbing layer of federal bureaucracy on top of all that.”

The EPA, for its part, says it’s listening.

In April, McCarthy wrote a blog post outlining the outreach she and her staff have conducted on the rule, including more than 400 meetings and reading more than a million public comments submitted to them.

“The input helped us understand the genuine concerns and interests of a wide range of stakeholders and think through options to address them,” she wrote.

“In the final rule, people will see that we made changes based on those comments, consistent with the law and the science. We’ve worked hard to reach a final version that works for everyone — while protecting clean water,” McCarthy said.

She said in November that she was “surprised” at the kind of criticisms lodged against the EPA over the rule.

“It became a communications challenge, but we remain very confident that the comments that we’re receiving are consistent with the way in which we need to head … and that we’ll be able to get this rule over the finish line,” she said.

One of the loudest voices against the rule has been agriculture. Farmers and ranchers said that the rule could make filling ditches, spraying fertilizer or other common farming practices subject to federal regulation.

But McCarthy has repeatedly said that agricultural exemptions that have long existed for water rules will continue.

Congress also acted to stop the water rule.

The House voted earlier in May to overturn it, and a bipartisan group of senators has sponsored a bill that would overturn it and give the EPA specific instructions and a deadline for rewriting it.

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