Obama Issues Scaled-Back Water Rules, Fails to Sway Critics

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The Obama administration issued long-delayed protections for waterways with specific new exemptions that failed to stem complaints from lawmakers and builders that the rules are a regulatory power grab.

The Environmental Protection Agency and U.S. Army Corps of Engineers on Wednesday issued a rule to curb pollution in small streams or wetlands, saying protections will help ensure navigable rivers and other “waters of the U.S.” stay clean.

The final rule explicitly excluded a swath of intermittent streams and isolated wetlands, and officials said they can be disturbed or polluted without a permit. Business groups complained that an earlier plan could ensnare thousands of miles of land where water flows for just a few days a year.

The revision failed to sway critics who vowed to press on with efforts to block the plan. Republicans, aided by farmers, builders, manufacturers and electric utilities, have made the issue one of the year’s most pitched environmental fights.

“The administration’s cavalier attitude toward expanding the federal government’s authority into our backyards is absolutely outrageous,” said Louisiana Republican Senator David Vitter. “I will continue to work with my colleagues to reverse and withdraw this rule before the economic devastation begins.”

The House already passed a measure that would force the agency to withdraw its plan and consult state leaders before issuing a new version. It passed this month 261-155, short of a veto-proof majority. President Barack Obama has vowed a veto.

‘Extreme Bureaucracy’

Senator John Barrasso, a Wyoming Republican and sponsor of a similar Senate version, said the rule “ensures further momentum” for his legislation to rein “extreme bureaucracy.”

Senate Agriculture Committee Chairman Pat Roberts, a Kansas Republican, said the final rule “raises more questions than it answers about the expansion of federal jurisdiction.” He also supports the Barrasso legislation.

One farm group, the National Farmers Union, said the changes made by the EPA go a long way toward easing their prior worries.

“The agency took the concerns of family agriculture under serious consideration,” said President Roger Johnson. “While the rule is not perfect from our perspective, the final rule is an improvement.”

Minimal Costs

In part because of changes, the EPA estimates the overall cost of the rule will be minimal, as it would lead to a less than 5 percent increase in the number of permits required. The overall cost of that change could range from $158 million to $465 million, with the benefits outweighing the expenses, according to the EPA’s economic analysis.

“It was a long, hard slog to reach this day,” Rhea Suh, president of the Natural Resources Defense Council, said in an e-mail statement. “Now we will redouble our efforts to defend the new Clean Water rule against developers, big polluters and their allies in Congress who want to kill it.”

The EPA and Army Corps, which jointly implement the Clean Water Act, want federal oversight for ponds or streams with a significant nexus to a larger river, lake or bay, a move that responds to muddy Supreme Court decisions. Opponents fear it will mean permission will be needed from federal regulators for small projects, such as digging a ditch or installing a culvert.

Intermittent Flows

The EPA said changes from a proposal released last year should clarify that projects affecting the smallest streams with intermittent flow or disconnected wetlands won’t need federal approval. The EPA said it also preserved exemptions for most agricultural practices, and, for the first time, added a list of entities that are explicitly excluded from coverage.

“Today’s final rule provides clarity, consistency and predictability about which waters are covered by the Clean Water Act,” Jo-Ellen Darcy, head of the Army Corps, told reporters Wednesday. “Our rule makes it clear which waters are covered, and which are not.”

Among those areas specifically covered are areas within the 100-year flood plain of navigable waterways, or 4,000 feet of a high-tide line.

Under the Clean Water Act, any entity that would damage or pollute a waterway covered by the rule first needs a federal permit. In some cases, getting that permit can take years of negotiation, and require the company or landowner buy offsets or agree to pay for preserving other wetlands or streams.

“The only people with reason to oppose the rule are polluters who knowingly threaten our clean water,” Brian Deese, a White House adviser, said on the conference call.

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