Feds Stake Out Authority Over Streams and Wetlands

ARLINGTON, WA - MARCH 23: (NO SALES) A steady stream of mud and water flows away from the mueslide blocking the road on Highway 530 next to mile marker 37 on March 23, 2014 near Arlington, Washington. Four people have been confirmed dead and at least 18 others are still missing after a massive mudslide in Oso, Washington. 
National Journal
Clare Foran
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Clare Foran
March 25, 2014, 7:48 a.m.

The En­vir­on­ment­al Pro­tec­tion Agency wants you to know ex­actly which wa­ter­ways it plans to pro­tect.

The agency floated draft rules Tues­day to define the bod­ies of wa­ter pro­tec­ted un­der the Clean Wa­ter Act. The rule brings the ma­jor­ity of U.S. streams and wet­lands un­der EPA’s jur­is­dic­tion. This means that any non-ex­empt activ­ity with the po­ten­tial to pol­lute pro­tec­ted wa­ter­ways must first earn the agency’s stamp of ap­prov­al.

EPA says the stand­ards will cla­ri­fy its ex­ist­ing au­thor­ity to pro­tect wa­ter sup­plies, but the reg­u­la­tion is sure to prompt push­back from con­ser­vat­ives and ag­ri­cul­tur­al sec­tor stake­hold­ers who have pre­vi­ously cri­ti­cized the rule­mak­ing as fed­er­al over­reach.

EPA Ad­min­is­trat­or Gina Mc­Carthy took pains to ward off cri­ti­cism ahead of the rule’s re­lease. “This rule does not ex­pand the Clean Wa­ter Act,” Mc­Carthy said dur­ing a press call with re­port­ers. “I re­peat it does not pro­tect any new types of wa­ter that have not his­tor­ic­ally been covered un­der the Clean Wa­ter Act.”

The reg­u­la­tion also in­cludes a roster of ex­emp­tions. Mc­Carthy touted this fea­ture of the rule­mak­ing, say­ing it will make life easi­er for farm­ers. “The rule keeps in­tact ex­ist­ing Clean Wa­ter Act ex­emp­tions for ag­ri­cul­tur­al activ­it­ies, [and] it ac­tu­ally ex­pands those ex­emp­tions,” the ad­min­is­trat­or said. “This is about stream­lin­ing the pro­cess and sav­ing money. We’re provid­ing cer­tainty about what’s in and what’s out.”

The stand­ards drew quick praise from en­vir­on­ment­al heavy­weights and sports­men’s groups alike. 

“The Si­erra Club ap­plauds the Obama ad­min­is­tra­tion for this ef­fort to re­store a com­mon-sense ap­proach to pro­tect­ing our na­tion’s lakes, rivers and streams. Clean wa­ter is an un­deni­able ne­ces­sity for the health of our fam­il­ies, our en­vir­on­ment, and our eco­nomy,” Mi­chael Brune, the club’s ex­ec­ut­ive dir­ect­or Club, said. 

“The wa­ters af­fected by today’s pro­pos­al provide vi­tal spawn­ing and rear­ing hab­it­at for trout and sal­mon. Simply stated, the pro­pos­al will make fish­ing bet­ter, and anglers should sup­port it,” said Trout Un­lim­ited pres­id­ent and CEO Chris Wood.

EPA has been work­ing to cla­ri­fy its Clean Wa­ter Act au­thor­ity after Su­preme Court rul­ings handed down in 2001 and 2006 raised ques­tions as to just how far agency pro­tec­tions ex­ten­ded. The pro­posed reg­u­la­tion un­veiled this week — com­monly known as the “wa­ters of the United States” rule — was de­livered to the White House for re­view last Septem­ber. It will be sub­ject to a 90-day pub­lic-com­ment peri­od after it ap­pears in the Fed­er­al Re­gister.

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