Citing a need to ensure clean drinking water, the Obama administration May 27 unveiled new rules that broadens what is considered the Waters of the United States and, thereby, pushing the U.S. Environmental Protection Agency’s Clean Water Act authority further upstream.
President Barack Obama said the new measures – which add wetlands and small tributaries to the navigable waters protected under the Clean Water Act – are needed to protect sources of drinking water for some 117 million Americans.
“Too many of our waters have been left vulnerable to pollution,” Obama said in conjunction with the release of the finalized Clean Water Rule. “That’s why I called on the Environmental Protection Agency and the U.S. Army Corps of Engineers to clear up the confusion and uphold our basic duty to protect these vital resources.”
America’s mining sector, however, worries that that the water rule will further complicate a permitting system that is already notoriously long and inefficient.
“We remain deeply concerned that the promised clarity from this rule comes at the steep price of more federal interference with state, local and private land-use decisions,” said National Mining Association President and CEO Hal Quinn.
Pointing to the added time to obtain permits, the American Exploration and Mining Association predicted, “This misguided federal effort will have a devastating effect on the jobs that mining provides.”
Many conservative lawmakers agree that the Clean Water Rule is a federal overreach that will stifle responsible development.
“The administration’s decree to unilaterally expand federal authority is a raw and tyrannical power grab that will crush jobs,” U.S. House Speaker John Boehner, R-Ohio, said.
The expansion is particularly troublesome for Alaska, which is covered with wide swaths of tundra and wetlands.
“The EPA’s expansion of the definition of “Waters of the United States” under the Clean Water Act appears to threaten economic activities across the country – and nowhere is the impact more likely than in Alaska,” said U.S. Sen. Lisa Murkowski, R-Alaska.
The EPA touted the new rules it crafted in conjunction with the Corps as a “historic step for the protection of clean water.”
Upstream expansion
Earlier in May, EPA Administrator Gina McCarthy sparred with Murkowski over the Clean Water Rule.
McCarthy, who was seeking approval for an US$8.6-billion budget for the EPA, assured the Senate Interior Appropriations Subcommittee that the EPA is not seeking to extend its reach with the water rule.
“This is not an expansion of our jurisdiction, this is a way to focus attention where it is deserved so there can be increased clarity about what’s in and what’s not in,” the EPA administrator testified.
Murkowski, who chairs the appropriations subcommittee, was not convinced.
“While your words are articulate, I don’t think it does much to calm the fears of the miners out in Fortymile who are worried about whether or not they are going to be able to move forward with their small placer mining activity,” she fired back.
Three weeks later, McCarthy concedes the rule does result in some upstream jurisdictional expansion.
Broadly, the 299-page rule protects navigable waters, their tributaries and nearby waters. Tributaries include anything that has the features of a stream – a bed, bank, and ordinary high-water mark – even if it does not flow year-round. Nearby waters include wetlands and other watery features within 1,500 feet of navigable waters also are covered under the rule.
“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,” McCarthy said upon release of the rule.
Murkowski said Alaska – covered by roughly 130 million acres of tundra, permafrost, marshes, bogs, and other similar wetland areas – is particularly prone to further encumbrances of the water rule.
“With half of all of the wetlands in the United States, Alaska is directly in the sights of the federal bureaucrats back in Washington, D.C., who will now be able to make decisions from more than 4,000 miles away about how we develop almost any part of our state,” the senator said.
Pending legislation
Republicans on both sides of Capitol Hill are endeavoring to quash the Clean Water Rule.
In May, the House passed the “Regulatory Integrity Protection Act of 2015,” HR 1732, a bill that would require EPA and Corps to rewrite the bill after meaningful engagement with industries, states and local governments.
In response to the release of the Clean Water Rule, Congressman Bill Shuster, R-Pennsylvania, who introduced HR 1732, said, “We are most disappointed the EPA ignored our comments and those of the Small Business Administration’s Office of Advocacy to convene a small business review panel as required by law to hear ours and the concerns of small business all over the U. S.”
Shuster said that with his bill still in play, the Waters of the United States issue has yet to be resolved.
Obama has threatened to veto HR 1732, if the legislation lands on his desk.
U. S. Sen. John Barrasso, R-Wyo., introduced a similar bill that would require EPA and Corps to take the Clean Water Rule back to the drawing board.
The legislation, known as the Federal Water Quality Protection Act, is aimed at providing “the EPA the direction it needs to write a reasonable rule that will truly protect our ‘navigable’ waterways.”
In response to the “outrageously broad” rule put forward by EPA, Barrasso said, “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 waters of the United States.”
Skewing public comment
Barrasso and fellow Republicans also contend that EPA overstepped its bounds in how it marketed the Clean Water Rule to the American public.
The Wyoming senator said, “It’s clear that the EPA would rather skew public comments in its favor than acknowledge the real concerns Americans and Congress have with this overreaching rule.”
However, U. S. Sen. Barbara Boxer, D-Calif., argued, “The Obama Administration listened to all perspectives and developed a final rule that will help guarantee safe drinking water supplies for American families and businesses and restore much-needed certainty, consistency, and effectiveness to the Clean Water Act.”
U. S. Sen. David Vitter, R-La., said the EPA not only pushed the limits of the law by using social media and other means to drum up public support for its water rule but did so in “collusion with far-left environmental groups.”
In a May 26 letter to EPA Administrator McCarthy, Vitter wrote, “Furthermore, not only did the EPA work side-by-side with environmental groups to promote the proposal, it worked hand-in-hand with ‘Organizing for Action,’ a remaining vestige of President Obama’s 2012 election campaign.”
Similarly, EPA has been accused of colluding with environmental groups in formulating a strategy to stop the enormous Pebble copper-gold project in Southwest Alaska from entering the permitting process and then crafting a study aimed at supporting the strategy.
Pebble Limited Partnership, the company hoping to develop the project, took EPA to court over the collusion.
U. S. District Judge H. Russel Holland June 4 ruled that the evidence of collusion was persuasive enough to deny EPA’s request to dismiss the case.
