- The Washington Times - Wednesday, May 27, 2015

The administration announced rules Wednesday to grant federal agencies sweeping environmental oversight over wetlands, ponds and even some ditches in a move supporters said will clean up dirty waters but which critics said was a capstone power grab for a lame-duck president.

Known as the Waters of the United States rule — which opponents have derisively shortened to WOTUS — the proposal would give the Environmental Protection Agency a say in land-use decisions wherever it deems those moves could affect important waterways.

“One in three Americans now gets drinking water from streams lacking clear protection, and businesses and industries that depend on clean water face uncertainty and delay, which costs our economy every day,” President Obama said in a statement backing the new rules. “Too many of our waters have been left vulnerable to pollution.”

He and his aides said their new rule, which the EPA and the Army Corps of Engineers first floated last year, is based on science identifying the important waterways that affect the broader health of the environment. The EPA said the rules have been improved since last year, based on feedback in the form of more than 1 million comments.

But opponents said they saw little evidence that the proposal has been improved, and said it remains the biggest federal intrusion into local decision-making in American history.

EPA would have the ability to control land use essentially in every square foot of the United States, which means if they didn’t want you to build something — a school a hospital, an athletic field — in a particular place, they could prevent it,” said Michael McKenna, a GOP energy lobbyist who has been trying to rally opposition to the rule.


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The new rule runs 297 pages long and goes to great lengths to define what is now a regulated waterway: anything affected by the tides was already included under the previous rules. However, the new proposal extends EPA’s oversight to anything that flows into those tidal waters, any waters “adjacent” to the waters that flow into tidal waters and wetlands and floodplains where water could flow into those bodies.

Puddles are specifically exempted on page 284 of the proposal.

Farmers won special consideration, with their watering ponds and flooded fields also exempted from the rules.

Congressional Republicans are certain to try to pass legislation halting the rule, but an early test vote in the House was not encouraging for them, winning a majority but not the two-thirds tally needed to overturn what would almost certainly be an eventual presidential veto.

More likely is that the rule ends up mired in legal battles for years, like so much of the rest of the Obama agenda, where the president has blamed Congress for inaction, has tested the limits of executive power and has had to rely on the courts to sort things out.

Republican attorneys general said they’ll test the legality of the new rules.

“This is an egregious power grab by the EPA and an attempt to reach beyond the scope granted to it by Congress,” said Oklahoma Attorney General E. Scott Pruitt. “This rule renders the smallest of streams and farm ponds subject to EPA jurisdiction. This means that the first stop for property owners is the EPA.”

EPA Administrator Gina McCarthy denied the rule was a power grab, saying it was intended to sort out a legal morass left by court decisions over the last few decades that had left in doubt what waters are affected by the Clean Water Act.

She said they heard complaints about a draft proposal issued last year and worked to narrow their definitions. She said “most ditches” won’t be covered by the expanded regulations, nor would groundwater.

But she said it was important to have federal control over decisions on streams, ponds and other areas that affect the health of bigger waterways.

“In developing the Clean Water Rule, the agencies used the latest science, including a report summarizing more than 1,200 peer-reviewed, published scientific studies — which showed small streams and wetlands play an important role in the health of larger downstream waterways like rivers and lakes,” Ms. McCarthy said.

Environmental groups and allied Democrats claimed the rules were overdue, saying that clean water protections should be nationalized and expanded beyond the major bodies of water to get at the smaller streams and headwaters that feed into them.

“American families deserve to know that our water is safe enough to drink, clean enough to use and free of harmful, crop-destroying chemicals,” said House Minority Leader Nancy Pelosi, California Democrat. “While Republicans and their special interest friends continue their efforts to dismantle the Clean Water Act, we will ensure that clean, healthy waters are the birthright of all our children.”

Some environmentalists, though, had hoped the rule would go further, saying it still leaves too much of the country without federal protection.

“The EPA’s new clean water rule fails to protect far too many of our waterways, endangering the health of both people and wild animals,” said Brett Hartl, endangered species policy director at the Center for Biological Diversity. “Without the full protection of the Clean Water Act, critical wetland habitats across the country will be degraded or destroyed, undermining the recovery of dozens of endangered species.”

The Clean Water Act protects “navigable waters” and gives the government the power to fight pollution of those waters. The extent of that jurisdiction, however, has been the subject of fights both within administrations and the courts.

Critics of the new rule span industry and politics, with Republican opponents saying the EPA’s involvement will become a damper on the economy, making it tougher to get permits for new development.

House Speaker John A. Boehner called the new rule “a raw and tyrannical power grab that will crush jobs.”

But Mr. Obama’s campaign arm, Organizing for Action, fired back, saying Mr. Boehner, Senate Majority Leader Mitch McConnell “and their polluter allies” were standing in the way of clean air and public health.

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