White House Begins Review of Final Rule From EPA, Corps on Protecting U.S. Waters

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By Amena H. Saiyid

April 6 — The White House Office of Management and Budget began its review April 6 of a final rule that would clarify which waters and wetlands fall under the protection of the Clean Water Act.

The final clean water rule, also known as the waters of the U.S. rule, was jointly proposed April 2014 by the Environmental Protection Agency and the U.S. Army Corps of Engineers (RIN 2040-AF30).

EPA Administrator Gina McCarthy and Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy said April 6 that the agencies plan to issue the final rule later this spring despite opposition from some states; the farming, timber, mining and construction industries; and Republican lawmakers (51 DER A-39, 3/17/15)(51 DEN A-13, 3/17/15)(2015 WLPM, 3/19/15)(46 ER 833, 3/20/15)(06 IIPR 12, 3/23/15).

The agencies sent the rule to OMB on April 3.

McCarthy has said the final rule will narrow the definition of tributaries and clarify that only ditches that function like tributaries and can carry pollution downstream. Roadside and irrigation ditches will remain uncovered under the final rule.

In an April 6 blog, McCarthy and Darcy emphasized that the final rule will maintain existing exemptions and exclusions for agriculture and ranching activities. It also would clarify the status of green infrastructure projects, such as constructed wetlands and grassy swales to manage stormwater.

Significance of Connections.

The final rule would better define the significance of connections with downstream navigable waters and would allow the agencies to draw bright lines for jurisdiction over waters and wetlands that are physically separate and located in uplands rather than engaging in time-consuming case by case deliberations.

“The public will see that the agencies listened carefully and made changes based on their input,” McCarthy said in the blog post that previewed the upcoming changes to the final rule.

Republican lawmakers, however, remain unconvinced by McCarthy's statements that farming and ranching activities will remain exempt under the final rule. They are concerned that the agencies will regulate land-use decisions by dictating that any dredging and filling and discharging of pollutants in any small stream be subject to federal permits and associated conditions.

The proposed rule would bring under federal jurisdiction all tributaries of streams, lakes, ponds and impoundments as well as wetlands that affect the chemical, physical and biological integrity of larger, navigable downstream waters (79 Fed. Reg. 22,188; 23 EDDG, 4/17/14)05 IIPR 4, 3/31/14)14 EHSDSN, 3/31/14)16 TEALERT 2, 3/28/14)45 ER 915, 3/28/14)29 TXLR 273, 3/27/14)58 DER A-40, 3/26/14)2014 WLPM, 3/26/14)).

It also sought case-by-case determination of waters that are isolated and located in the uplands. Coverage under the Clean Water Act would mean that discharge of pollutants or dredging and filling of wetlands and waters would require permits. The rule's coverageof waters and wetlands also would require compliance with oil spill prevention programs, as well as state water quality certification of federal projects.

The OMB review is usually the last step before a federal agency releases a rule, policy or guidance to the public.

Rule Review Welcomed.

The American Sustainable Business Coalition, which represent more than 200,000 businesses, said April 6 that it was glad the agencies were moving ahead with the rulemaking.

“This common sense rule is supported by a wide array of companies and economic sectors—high technology, agriculture, consumer products, and more,” Richard Eidlin, policy vice president for the business council said in a statement.

Eidlin said the council hopes to see the final rule soon and urged Congress to “leave the rule intact.”

The interagency review comes in the wake of renewed opposition from Republicans and some Democrats in Congress about the lack of clarity in the rule.

Sens. James Inhofe (R-Okla.), chairman of the Senate Environment and Public Works Committee, and John Barrasso (R-Wyo.), chairman of the Senate Republican Policy Committee, have indicated their intention to introduce legislation that would send the proposed rule back to the agencies for a rewrite. Barrasso also was responsible for successfully shepherding a non-binding amendment to the Senate budget resolution that would force the agencies to narrowly tailor the rule (56 DER A-41, 3/24/15)(56 DEN A-14, 3/24/15)(2015 WLPM, 3/26/15).

Likewise, Rep. Bob Gibbs (R-Ohio), chairman of the House Transportation and Infrastructure Subcommitee on Water Resources and Environment, has indicated his plans to introduce a bill after the House returns from Easter recess(57 DEN A-1, 3/25/15)(57 DER A-45, 3/25/15)(2015 WLPM, 3/26/15)(46 ER 937, 3/27/15)