The Obama administration, on Tuesday, May 27, finalized its controversial proposal to redefine the features that fall under jurisdiction of the Clean Water Act. While the administration asserts the intent of the rule is to clear up confusion regarding its jurisdiction over certain streams, wetlands, ponds, and other land and water bodies, opponents of the rule remain unconvinced.
“This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable,” said President Barack Obama.
House Speaker John Boehner issued a blistering statement shortly after the rule was released, saying the Environmental Protection Agency’s (EPA) final rule is a vast expansion of federal authority. The House recently passed legislation to force EPA and the U.S. Army Corps of Engineers to start over on the proposal.
“The administration’s decree to unilaterally expand federal authority is a raw and tyrannical power grab that will crush jobs,” said Speaker Boehner. “House members of both parties have joined more than 30 governors and government leaders to reject EPA’s disastrous WOTUS rule. These leaders know firsthand that the rule is being shoved down the throats of hardworking people with no input, and places landowners, small businesses, farmers, and manufacturers on the road to a regulatory and economic hell.”
Speaker Boehner wasn’t alone in his criticism, with the chairman of the Senate Committee on Environment and Public Works saying the final rule actually goes further than the proposal and adding that EPA and U.S. Army officials admitted the proposal was “flawed, inconsistent and ambiguous,” and said their agencies would address the concerns of states, local governments and agriculture.
"Despite their assurances, it appears that EPA and the U.S. Army Corps of Engineers have failed to keep their promises to Congress and the American people,” said Chairman Inhofe. “In fact, instead of fixing the overreach in the proposed rule, remarkably, EPA has made it even broader.
“The EPA has set themselves up to increase federal control over private lands, and I will not allow it,” he promised, pledging to consider legislation (S. 1140) this summer to stop the rule from moving forward.
EPA and the Corps received more than 1 million public comments on the proposal and made some changes to the final rule. The final rule further defined “adjacent waters and wetlands” as features that are adjacent to jurisdictional waters within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark.
The proposed rule defined tributaries as a water feature with a bed, banks and ordinary high water mark, and flow downstream. Under the final rule, the agencies will “evaluate for adjacency” wetlands and open waters that do not have beds, banks and high water marks.
Additionally, the final rule added language to regulate additional isolated, regional features, including Prairie Potholes, Carolina and Delmarva bays, vernal pools in California and costal prairie wetlands in Texas. These features would be evaluated to determine if they have a significant nexus to a navigable water.
In the final rule, the agencies continued to cite a 2006 Supreme Court ruling in the Rapanos v. United States case regarding federal jurisdiction to regulate isolated wetlands under the CWA. The case resulted in a split decision, with Justice Antonin Scalia writing for the plurality opinion that reinforced the limits on “waters of the United States” by stating that “waters of the United States” include “only those relatively permanent, standing or continuously flowing bodies of water” like streams, rivers and lakes. Justice Scalia specifically noted that “waters of the United States” do not include channels that only hold water periodically, and are only wetlands with a continuous surface connection to bodies of water that are “waters of the United States.”
EPA and the Corps however, have opted to ignore Justice Scalia's opinion and instead follow Justice Anthony Kennedy’s separate concurring opinion, which said an isolated water does not have to have a surface water connection. Under the final rule, an isolated water body could be consider jurisdictional if that wetland “significantly affects the chemical, physical, or biological integrity” of a navigable water.
With regard to agriculture, the agencies continue to claim the rule preserves specific exemptions for farming and ranching. “The rule does not create any new permitting requirements for America’s farmers. Activities like planting, harvesting, and moving livestock have long been exempt from Clean Water Act regulation, and the Clean Water Rule preserves those exemptions,” according to EPA.
Agricultural organizations aren’t taking any chances, with the American Farm Bureau Federation and the National Cattlemen’s Beef Association saying they will evaluate the final rule for themselves.
“We are undertaking a thorough analysis of the final WOTUS rule to determine whether the Environmental Protection Agency listened to the substantive comments farmers and ranchers submitted during the comment period,” said American Farm Bureau President Bob Stallman. “Based on EPA’s aggressive advocacy campaign in support of its original proposed rule—and the agency’s numerous misstatements about the content and impact of that proposal—we find little comfort in the agency’s assurances that our concerns have been addressed in any meaningful way.
NCBA President Philip Ellis questioned the ability of the agencies to consider the more than 1 million comments submitted on the proposal and prepare a final rule in just six months and continued to criticize EPA’s aggressive outreach campaign on the issue.
“The former Obama campaign officials that received political appointments at EPA are apparently putting their activist knowledge base to use,” said Ellis. “Soliciting endorsements and support is a far cry from simply educating the public, as EPA officials claim.”
The Agencies estimate the rule will cost as much as $306 million annually. The WOTUS rule will be effective 60 days after publication in the Federal Register.