- The Washington Times - Tuesday, December 11, 2018

The Environmental Protection Agency moved Tuesday to scale back the Obama-era Waters of the United States rule, a policy embraced by environmentalists but denounced by critics as a power grab that placed even potholes and puddles under federal control.

In the Trump administration’s latest strike on federal regulations, the EPA proposed redefining “waters of the United States” in a way that would draw a clear line between navigable waterways under federal versus state control.

“Our proposal would replace the Obama EPA’s 2015 definition with one that respects the limits of the Clean Water Act and provides states and landowners the certainty they need to manage their natural resources and grow local economies,” said EPA acting administrator Andrew R. Wheeler, who President Trump has said he will nominate for the top job. “For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways.”

The changes would help landowners understand “whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals,” he said.

Environmentalists were quick to criticize the proposal — the Waterkeeper Alliance called it a “sickening gift to polluters” — while Democrats dubbed it the “dirty water rule” and called on the Trump administration to reverse course.

Sen. Tom Carper, Delaware Democrat, called rolling back the Clean Water Act protections “nothing short of senseless” even as Republicans cited longstanding confusion over the law’s definition of “navigable waters.”

House Natural Resources Committee Chairman Rob Bishop, Utah Republican, said the proposed rule would provide “much-needed clarity and certainty for America’s farmers, contractors, landowners, and ranchers,” calling the Obama-era policy “a reckless expansion of federal control.”

“The 2015 rule was an expansion of federal power that used bureaucrat-speak to strip landowners of their rights and local governments of their ability to manage waters within their borders,” said Rep. Garret Graves, Louisiana Republican. “This new approach is the product of doing it the right way — openly, with the input of the American people.”

The American Farm Bureau Federation also praised the effort, saying that the 2015 rule had come at a high price for farmers fearful of facing ruinous fines by running afoul of the EPA’s greater reach.

A 2015 bureau analysis found that, for example, 99 percent of Pennsylvania would be subject to EPA jurisdiction under the Obama-era expansion.

“This new rule will empower farmers and ranchers to comply with the law, protect our water resources and productively work their land without having to hire an army of lawyers and consultants,” said bureau president Zippy Duvall.

The changes, proposed with the Army Corps of Engineers, would separate navigable waterways under federal authority into six categories: traditional navigable waterways; those connected to navigable waters, including tributaries; certain navigable ditches, such as the Erie Canal; lakes and ponds that contribute to navigable waterways; impoundments of jurisdictional waters; and adjacent wetlands.

Not covered would be “features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; storm water control features; and waste treatment systems.”

The National Parks Conservation Association said the proposed rule would “take us back five decades in our effort to clean up our waterways,” while the Waterkeeper Alliance argued that it would “free industry to dump toxic waste into streams across the United States” and “allow the destruction of millions of acres of wetlands critical to endangered wildlife.”

“By limiting protections only to wetlands and streams that are ‘physically and meaningfully connected’ to larger navigable bodies of water, the proposal would virtually eliminate the Clean Water Act’s protections across the arid West, from West Texas to Southern California, including most of New Mexico, Arizona and Nevada,” the alliance said.

Mr. Wheeler, who said the Obama administration rule went “way beyond the law,” responded that environmental authority in previously covered areas would revert to the states, avoiding redundant and conflicting regulations.

“If it’s not a federal waterway, almost every other waterway is still protected under state law,” Mr. Wheeler said on the Hugh Hewitt radio show. “We don’t need to have the dual protection and the dual requirements and permits of both state and federal levels. They’re important waterways for our country, and we want to make sure that those are protected. And that’s what this proposal does.”

Public comment will be open for 60 days after publication of the rule in the Federal Register. The two agencies, EPA and the Army Corps, will hold a Jan. 10 information webcast and a Jan. 23 listening session in Kansas City, Kansas.

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