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May 31, 2015

EPA Issues Final Water Of The U.S. Rule, Which Will Greatly Expand Department’s Regulatory Reach

Last Wednesday, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers released their final draft of the controversial Waters of the United States (WOTUS) rule. As National Journal explains, the rule vastly expands the federal government’s authority to regulate U.S. waterways. The magazine reports, “The new rule, using authority to reduce pollution in waterways under the 1972 Clean Water Act, says that federal agencies have regulatory power over streams and wetlands that flow into downstream water sources.” 

 George Washington University’s Regulatory Studies Center further explained the growing reach of the EPA under the final rule. The Center said, “The agencies define ‘adjacent’ waters as jurisdictional under the CWA, based on whether these waters neighbor other jurisdictional waters. However, waters not meeting this definition may be determined to be covered on a case-by-case basis. The agencies also identify a number of additional types of waters that may be deemed jurisdictional based on a case-by-case analysis.” 

This expansion comes despite growing criticism from farmers and other businesses about the costs of complying with the rule. While stakeholders are still analyzing the potential economic impact of the final draft, the proposal would likely:

  • Expand federal jurisdiction over waters from 3.5 million river and stream miles to well over eight million river and stream miles;
  • Make most ditches into “tributaries,” a move that would trigger permits that can cost $100,000 or more;
  • Trigger additional environmental reviews that would add years to the completion time for ordinary projects;
  • Require firms to agree to mitigate environmental “damage” with costly restoration/mitigation projects;
  • Result in more stringent storm water management requirements, which would affect retailers and other companies with large parking lots.

Legislation has been offered in both the U.S. House and Senate that would require the EPA and the Army Corps of Engineers to rewrite the rule. Unfortunately, while that bill has bipartisan support, President Barack Obama would veto it if it passed Congress. 

Meanwhile, in other EPA regulatory news: a new study by Indiana University found the EPA may be overstating the health benefits of its proposed rules. According to Manufacturing.net, “The analysis, published in the Journal of Benefit-Cost Analysis, found that even minor variations regarding the dangers of air particles could result in substantial changes in the anticipated number of lives saved over a large population. IU researchers evaluated nine regulations issued by the U.S. Environmental Protection Agency between 2011 and 2013, including rules regarding mercury levels and fine particle emissions. Uncertainty about the impact of air particles, the study said, meant the number of saved lives could range between 80,000 and zero.”