From the Thursday 28 May 2015 online edition of the NY Times:
WASHINGTON — President Obama on Wednesday [27 May 2015] announced a sweeping new clean water regulation meant to restore the federal government’s authority to limit pollution in the nation’s rivers, lakes, streams and wetlands.
The rule, which would apply to about 60 percent of the nation’s bodies of water, comes as part of a broader effort by Mr. Obama to use his executive authority to build a major environmental legacy, without requiring new legislation from the Republican-controlled Congress.
Industry groups, including the American Farm Bureau and the U.S. Chamber of Commerce, are already preparing lawsuits to challenge the rule, and legal experts say the battle over control of the nation’s waters could end up before the Supreme Court, which in recent years has cast doubt on the government’s authority to regulate certain waterways.
Republicans in Congress point to the rule as another example of what they call executive overreach by the Obama administration. This summer, for example, the Environmental Protection Agency is expected to release a final set of regulations intended to counter climate change by limiting greenhouse gas pollution from power plants.
Already, Republican lawmakers are advancing legislation on Capitol Hill meant to block or delay both the climate and clean water rules.
In announcing the rule, Mr. Obama said, “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. Too many of our waters have been left vulnerable to pollution.”
“With today’s rule,” he added, “we take another step towards protecting the waters that belong to all of us.”
Speaker John A. Boehner, Republican of Ohio, called the rule “a raw and tyrannical power grab that will crush jobs,” adding, “House members of both parties have joined more than 30 governors and government leaders” to reject the rule.
The E.P.A. and the Army Corps of Engineers jointly proposed the rule, known as Waters of the United States, last spring. The agency has held more than 400 meetings about it with outside groups and read more than one million public comments as it wrote the final language.
The rule is being issued under the 1972 Clean Water Act, which gave the federal government broad authority to limit pollution in major water bodies, like Chesapeake Bay, the Mississippi River and Puget Sound, as well as streams and wetlands that drain into those larger waters.
But two Supreme Court decisions related to clean water protection, in 2001 and in 2006, created legal confusion about whether the federal government had the authority to regulate the smaller streams and headwaters, and about other water sources such as wetlands.
E.P.A. officials say the new rule will clarify that authority, allowing the government to once again limit pollution in those smaller bodies of water — although it does not restore the full scope of regulatory authority granted by the 1972 law.
The E.P.A. also contends that the new rule will not give it the authority to regulate additional waters that had not been covered under the 1972 law.
“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,” the E.P.A. administrator, Gina McCarthy, said in a written statement.
“Today’s rule marks the beginning of a new era in the history of the Clean Water Act,” said Jo-Ellen Darcy, assistant secretary for the Army Corps of Engineers, which co-wrote the rule.
“This rule responds to the public’s demand for greater clarity, consistency and predictability when making jurisdictional determinations,” she added.
Environmentalists praised the rule, calling it an important step that would lead to significantly cleaner natural bodies of water and healthier drinking water.
“Our rivers, lakes and drinking water can only be clean if the streams that flow into them are protected,” said Margie Alt, executive director of Environment America. “That’s why today’s action is the biggest victory for clean water in a decade.”
A coalition of industry groups, led by the American Farm Bureau Federation, has waged an aggressive campaign calling on the E.P.A. to withdraw or revamp the rule.
Farmers fear that the rule could impose major new costs and burdens, requiring them to pay fees for environmental assessments and to obtain permits just to till the soil near gullies, ditches or dry streambeds where water flows only when it rains. A permit is required for any activity, like farming or construction, that creates a discharge into a body of water covered under the Clean Water Act or affects the health of it, like filling in a wetland or blocking a stream.
“It’s going to cause a nightmare for farmers,” said Don Parrish, senior director of congressional relations for the American Farm Bureau Federation.
“Our members own the majority of the landscape that’s going to be impacted by this,” he said. “It’s going to make their land, the most valuable thing they possess, less valuable. It could reduce the value of some farmland by as much as 40 percent.”
Industry groups also warned that enforcement of the new rule would create a profusion of lawsuits and other legal red tape. If property owners fail to apply for permits to build, till, develop or perform other potentially polluting activities near water bodies, they can be sued by the E.P.A. Environmental advocates and even private citizens will also be able to bring lawsuits against landowners who might be in violation of the regulations.
The lobbying fight over the rule has generated a public relations battle on social media.
In its protest, the American Farm Bureau Federation started a social media campaign, using the Twitter hashtag #DitchTheRule, to urge farmers and others to push the E.P.A. to abandon or revamp the rule. The E.P.A., in response, created a campaign with the hashtag #DitchTheMyth, urging people to speak out in favor of it. But some legal experts say that campaign might have tested the limits of federal lobbying laws, which prohibit a government agency from engaging in grass-roots lobbying for proposed policies or legislation.
On Tuesday, Republican lawmakers from the Senate Environment and Public Works Committee and House Science, Agriculture and Oversight committees sent letters to Ms. McCarthy demanding that the E.P.A. turn over documents relating to the development of the social media campaign.