Lawmakers move to block clean water rule before it is issued

Sometime in the next several weeks, the Obama administration is expected to put in place an administrative rule defining the scope of the Clean Water Act and federal government’s regulatory reach to so-called “waters of the United States.” The rule will specify just how far the Environmental Protection Agency and the Army Corp of Engineers may go in asserting jurisdiction over waters across the U.S. to enforce the act.

Several members of Congress from Missouri, Illinois and across the U.S. say they fear the new rule will expand the regulatory reach of the federal government to “even the puddles on our private property” and “basic ditches and depressions in our backyards and our farms”: Concerns expressed by Sen. Roy Blunt, R-Mo., and Rep. Vicky Hartzler, R-Harrisonville, respectively. Each is co-sponsoring separate legislation that would halt the proposed rule and put in place a long list of specific requirements for the agencies to follow when developing such a rule.

The White House says the final rule -- which has not been publicly released -- is not an expansion of jurisdiction, but rather a “clarification,” made necessary by two Supreme Court cases over the past 14 years.

While the court may not have invalidated the underlying regulation challenged in each case, it did limit how far and under what circumstances the federal government may assert its regulatory jurisdiction beyond the act’s so-called “navigable waters.”

Ken Kopocis, deputy assistant EPA administrator for water, told St. Louis Public Radio that at the time of those cases the two “agencies had not changed the underlying rule that defines what waters were and were not subject to the Clean Water Act since the late '80s.” This rule making, he said, is in response to requests from “all stakeholders and all sides of the political debate” to clear up questions resulting from those cases.

“There was simply too much confusion and too many case-specific instances where time-consuming and expensive analysis was necessary” to determine whether certain waters fell under the jurisdiction of the act, he said.

Nexus to navigation

While the Supreme Court recognized the agencies’ jurisdiction over navigable waters such as rivers and wetlands that abut those rivers, it questioned the agencies’ jurisdiction over more remote waters that do not have an obvious connection to navigable waters. In doing so, it raised the concept of whether a “significant nexus” existed between navigable waters and more remote wetlands in looking at how far the government’s regulatory reach could extend.

Kopocis says the court did not define the concept of significant nexus in quantitative terms, leaving it to the agencies to determine what constitutes significance. The proposed rule contains a list defining waters clearly under the government’s jurisdiction. It also defines waters for which a case-specific determination will be necessary, and those that are not “waters of the United States.”

The agencies held more than 400 public meetings and gathered more than 1 million comments as part of the rulemaking, according to Kopocis.

“And where people came to us and said we think that your proposed definition is too broad and too expansive, we’ve now gone back and we’ve revisited the text to make sure that we’re accurately reflecting what the science says is the relationship between these adjacent and neighboring waters and the navigable waters,” Kopicis added. “ … you will see changes in the (final) rule that more accurately reflect what our stated intent was in making sure that we are not expanding into areas that we’ve not historically asserted jurisdiction.”

As originally proposed the agencies would assert jurisdiction over:

1. All waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
2. All interstate waters, including interstate wetlands;
3. The territorial seas;
4. All impoundments of waters identified in items 1-3 and in item 5;
5. All tributaries of waters identified in items 1-4;
6. All waters, including wetlands, adjacent to a water identified in items 1-5 and;
7. On a case-specific basis, other waters, including wetlands, provided that those waters alone, or in combination with other similarly situated waters, including wetlands, located in the same region, have a significant nexus to a water identified in items 1 through 3 above.

As originally proposed, the following are not "waters of the United States" notwithstanding whether they meet the terms of items 1 through 7 listed above;

1. Waste treatment systems, including treatment ponds or lagoons, designed to meet the requirements of the Clean Water Act.
2. Prior converted cropland. Notwithstanding the determination of an area's status as prior converted cropland by any other Federal agency, for the purposes of the Clean Water Act the final authority regarding Clean Water Act jurisdiction remains with EPA.
3. Ditches that are excavated wholly in uplands, drain only uplands, and have less than perennial flow.
4. Ditches that do not contribute flow, either directly or through another water, to a water identified in items 1-4 (of the first list above).
5. The following features:

(a) Artificially irrigated areas that would revert to upland should application of irrigation water to that area cease;

(b) Artificial lakes or ponds created by excavating and/or diking dry land and used exclusively for such purposes as stock watering, irrigation, settling basins, or rice growing;

(c) Artificial reflecting pools or swimming pools created by excavating and/or dyking dry land;

(d) Small ornamental waters created by excavating and/or diking dry land for primarily aesthetic reasons;

      (e)  Water-filled depressions created incidental to construction activity;

      (f) Groundwater, including groundwater drained through subsurface drainage systems; and 

      (g) Gullies and rills and non-wetland swales.

Full text of Proposed "Definition of 'Waters of the United States' Under the Clean Water Act"

Blocking a rule with legislation

In addition to halting the proposed rule, House Bill 1732 that Hartzler co-sponsors would require the agencies “to go back to the drawing board to clarify who really has jurisdiction over all types of waters in this country and to … work with the state governments, local governments and local stakeholders in gathering input into that process and agreement on it, rather than the current rule which is a one-size-fits-all, top-down mandate from the federal government,” Hartzler said. “I call it a federal land grab; a taking (of) jurisdiction over all those waters, including our ditches in our backyards.”

Senate Bill 1140, co-sponsored by Blunt, would put a list of “waters” beyond the reach of the proposed rule including, “isolated ponds, ditches, agriculture water, storm water, groundwater, floodwater, municipal water supply systems, wastewater management systems and streams,” according to a release from Blunt’s office. “This bipartisan bill directs the EPA and the Army Corps of Engineers to issue a reasonable rule that will preserve our navigable waterways and natural resources, while protecting Missourians from the Obama administration’s brazen attempts to control their private property,” Blunt said in the same statement from his office

Clearly, the White House sees its proposed rule differently and specifically opposes the House bill. “If enacted, HR 1732 would derail current efforts to clarify the scope of the CWA, hamstring future regulatory efforts, and deny businesses and communities the regulatory certainty needed to invest in projects that rely on clean water.” The statement also says the two agencies have “conducted an extensive and lengthy outreach” to what it says has been a broad range of people who have an interest in the issue. The statement also says were the bill to reach the president’s desk, his senior advisers would recommend that he veto the bill.

The White House probably also opposes the Senate bill for many of the same reasons, but no statement of administration policy on it was posted on the White House site by the time this was published. Nor had the White House respond to an email inquiry on the matter.