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'Waters of the United States' Rule Pits EPA against Powerful Industries

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The Obama administration announced new protections Wednesday for thousands of waterways and wetlands, pushing ahead despite a fierce counterattack from powerhouse industries like agriculture, oil and home-building — and their supporters in Congress.

On its face, the Waters of the United States rule is largely a technical document, defining which rivers, streams, lakes and marshes fall under the jurisdiction of the Environmental Protection Agency and the Army Corps of Engineers. But opponents condemn it as a massive power grab by Washington, saying it will give bureaucrats carte blanche to swoop in and penalize landowners every time a cow walks through a ditch. And it comes amid years of complaints from Republicans about President Barack Obama’s regulatory agenda, which has encompassed everything from power plants and health insurers to Internet providers and for-profit colleges.

Critics are already fighting back: The House voted earlier this month to block the rule, with support from both Republicans and some farm- and energy-state Democrats, and similar legislation is moving through the Senate. Opponents are also preparing lawsuits that will add to an already long trail of litigation over the government’s powers to regulate water — an issue the Supreme Court has taken up twice, with confusing results, since 2001.

Obama was quick to add his personal endorsement to the rule, saying the measure is needed to protect vulnerable waterways and drinking water and to keep the economy going.

“This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable,” Obama said in a statement after the EPA released a final version of the regulation. “My administration has made historic commitments to clean water, from restoring iconic watersheds like the Chesapeake Bay and the Great Lakes to preserving more than a thousand miles of rivers and other waters for future generations. With today’s rule, we take another step towards protecting the waters that belong to all of us.”

But House Speaker John Boehner accused the president of delivering yet another devastating blow to the economy.

“The administration’s decree to unilaterally expand federal authority is a raw and tyrannical power grab that will crush jobs,” the Ohio Republican said in a statementhttp://www.speaker.gov/press-release/speaker-boehner-latest-epa-power-grab. “[T]he rule is being shoved down the throats of hardworking people with no input, and places landowners, small businesses, farmers and manufacturers on the road to a regulatory and economic hell.”

The agencies and their supporters say the safety of drinking water and stream health are threatened because of weak state and local regulation and a lack of enforcement. The rule is meant to make it clearer which waterways EPA and the Corps of Engineers can oversee under the 43-year-old Clean Water Act, which covers “navigable waters” such as the Mississippi River and Lake Erie but is vague on how far upstream protections must go to keep those water bodies clean.

In essence, the rule would establish whether antipollution laws are triggered if a farmer blocks a stream to make a pond for livestock, a developer fills in part of a wetland to put up a house or an oil pipeline has to cross a creek.

“The only people with reason to oppose the rule are polluters who threaten our clean water,” senior White House adviser Brian Deese told reporters during a conference call. He added that the rule “is based on common sense. … The status quo is rife with unsustainable confusion over what’s protected and what’s not.”

The final rule ensures protections for tributaries that have physical signs of flowing water, even if they don’t run all year round, and ditches that “look and act” like tributaries, said Jo-Ellen Darcy, the assistant secretary of the Army for civil works. The rule also limits EPA regulatory oversight to any body of water within 1,500 feet of another water body already covered by the rule, unless they have a surface water connection.

 

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