Inhofe promises to push bill to block EPA’s new ‘waters of the United States’ rule

U.S. Sen. Jim Inhofe, R-Okla., chairman of the Senate Committee on Environmental and Public Works (EPW), on May 27 slammed the U.S. Environmental Protection Agency’s (EPA) announcement that day of final rule on the “waters of the United States” (WOTUS).

This rule would expand U.S. Army Corps of Engineers authority over water bodies to small ponds and streams, potentially putting new restrictions on many industries, including coal mining.

Inofe said: “Since the beginning of the new Congress, my committee has been committed to providing rigorous oversight of EPA’s new rule defining ‘waters of the United States.’ This began with a bicameral hearing in early February, where EPA Adm. Gina McCarthy and Assistant Secretary for the Army for Civil Works Jo-Ellen Darcy admitted the WOTUS rule is flawed, inconsistent, and ambiguous and promised to ameliorate and address the concerns of states, local governments and agriculture. Those concerns mounted as my committee continued to review the rule in four subsequent hearings. Despite their assurances, it appears that EPA and the U.S. Army Corps of Engineers have failed to keep their promises to Congress and the American people. In fact, instead of fixing the overreach in the proposed rule, remarkably, EPA has made it even broader.

“This makes it more important than ever for Congress to act. Last month, I stood with a bipartisan group of Senators to unveil S. 1140, the Federal Water Quality Protection Act, to rein in EPA’s attempt to use the Clean Water Act to expand federal control over land and water. Sen. Dan Sullivan, Chairman of the Fisheries, Water, and Wildlife Subcommittee, held a legislative hearing on the bill last week that underscored the importance of keeping the focus of the Clean Water Act on clean water and called out EPA’s attempt to use the rule as a tool for habitat protection. The EPA has set themselves up to increase federal control over private lands, and I will not allow it. Our committee is planning for a markup on S. 1140 this summer, as we continue our work to halt EPA’s unprecedented land grab and refocus its job on protecting traditional navigable waters from pollution.” 

Since the 2001 Supreme Court decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, agencies such as the U.S. Fish and Wildlife Service have used conservation partnerships and land purchases to maintain isolated waters for bird habitat, including prairie potholes and playa lakes. However, in the final rule, EPA has decided that by declaring a farmer’s field a “regional water treasure” the federal government can put partnership and land purchases aside and simply regulate private property, Inhofe said. Under the final rule, isolated bodies of waterwill be considered regulated “systems.” As a result, the final rule expands federal control over thousands of farmer’s fields in the Midwest and elsewhere.

On April 6 and 8, Sen. Dan Sullivan held two field hearings – one in Anchorage, Alaska and the other in Fairbanks, Alaska – to examine local impacts of EPA’s proposed WOTUS rule on state and local governments and stakeholders. Lorali Simon, the Vice President of External Affairs at Usibelli Coal Mine Inc., Alaska’s only coal producer, was among the officials testifying at the April 6 field hearing. Simon noted that Usibelli supplies 100% of the in-state demand to six coal-fired power plants, as well as exports close to one million tons of coal to customers in Chile, South Korea and Japan.

“Usibelli is deeply concerned about a proposed rule by the Environmental Protection Agency which would significantly increase the jurisdictional waters of the United States under the Clean Water Act,” Simon wrote in prepared testimony for that April 6 hearing. “Should this proposed rule be finalized, it will likely stop all development in Alaska – small, private developments, as well as large resource development projects.”

EPA says this rule needed to protect drinking water

EPA on May 27 said this final rule ensures that waters protected under the Clean Water Act are more precisely defined and predictably determined, making permitting less costly, easier, and faster for businesses and industry. The rule is grounded in law and the latest science, and is shaped by public input, EPA added. It said the rule does not create any new permitting requirements for agriculture and maintains all previous exemptions and exclusions.

“For the water in the rivers and lakes in our communities that flow to our drinking water to be clean, the streams and wetlands that feed them need to be clean too,” said EPA Administrator Gina McCarthy. “Protecting our water sources is a critical component of adapting to climate change impacts like drought, sea level rise, stronger storms, and warmer temperatures – which is why EPA and the Army have finalized the Clean Water Rule to protect these important waters, so we can strengthen our economy and provide certainty to American businesses.”

“Today’s rule marks the beginning of a new era in the history of the Clean Water Act,” said Assistant Secretary for the Army (Civil Works) Jo-Ellen Darcy. “This is a generational rule and completes another chapter in history of the Clean Water Act. This rule responds to the public’s demand for greater clarity, consistency, and predictability when making jurisdictional determinations. The result will be better public service nationwide.”

Protection for many of the nation’s streams and wetlands has been confusing, complex, and time-consuming as the result of Supreme Court decisions in 2001 and 2006, EPA said. EPA and the Army are taking this action to provide clarity on protections under the Clean Water Act after receiving requests for over a decade from members of Congress, state and local officials, industry, agriculture, environmental groups, scientists, and the public for a rulemaking.

Climate change makes protection of water resources even more essential, EPA argued. Streams and wetlands provide many benefits to communities by trapping floodwaters, recharging groundwater supplies, filtering pollution, and providing habitat for fish and wildlife. Impacts from climate change like drought, sea level rise, stronger storms, and warmer temperatures threaten the quantity and quality of America’s water. Protecting streams and wetlands will improve our nation’s resilience to climate change.

Specifically, the Clean Water Rule:

  • Clearly defines and protects tributaries that impact the health of downstream waters. The Clean Water Act protects navigable waterways and their tributaries. The rule says that a tributary must show physical features of flowing water – a bed, bank, and ordinary high water mark – to warrant protection. The rule provides protection for headwaters that have these features and science shows can have a significant connection to downstream waters.
  • Provides certainty in how far safeguards extend to nearby waters. The rule protects waters that are next to rivers and lakes and their tributaries because science shows that they impact downstream waters. The rule sets boundaries on covering nearby waters for the first time that are physical and measurable.
  • Protects the nation’s “regional water treasures.” Science shows that specific water features can function like a system and impact the health of downstream waters.
  • Focuses on streams, not ditches. The rule limits protection to ditches that are constructed out of streams or function like streams and can carry pollution downstream. So ditches that are not constructed in streams and that flow only when it rains are not covered.
  • Maintains the status of waters within Municipal Separate Storm Sewer Systems.
  • Reduces the use of case-specific analysis of waters. Previously, almost any water could be put through a lengthy case-specific analysis, even if it would not be subject to the Clean Water Act. The rule significantly limits the use of case-specific analysis by creating clarity and certainty on protected waters and limiting the number of similarly situated water features.

The Clean Water Rule only protects the types of waters that have historically been covered under the Clean Water Act, EPA said. It does not regulate most ditches and does not regulate groundwater, shallow subsurface flows, or tile drains. It does not make changes to current policies on irrigation or water transfers or apply to erosion in a field. The Clean Water Rule addresses the pollution and destruction of waterways – not land use or private property rights.

The Clean Water Rule will be effective 60 days after publication in the Federal Register.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.