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WOTUS Rule Expands EPA Authority; Exempts Quarries


The U.S. Environmental Protection Agency (EPA) released its final "waters of the United States" (WOTUS) rule. In taking this action, EPA greatly expanded its own regulatory authority and created new bureaucratic red tape for many U.S. industrial activities.

“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."

While EPA is touting the virtues of WOTUS, industry advocates are telling a different story.

“NSSGA members work diligently to protect our nation’s water resources, following existing federal, state and local laws. This rule will add significant costs to aggregates producers with little or no environmental benefit,” said NSSGA President and CEO Michael W. Johnson. “The increased costs and delays will be passed along to the taxpayers through a higher price tag for infrastructure projects like highways.”

“Every avenue open to us to make our voice heard, we took” said NSSGA’s Sr. vice president Pam Whitted. “In addition to submitting detailed comments on the rule, NSSGA members and staff met multiple times with EPA officials, the White House and countless members of both the House and Senate to make it clear that the aggregates industry opposed this radical expansion of EPA authority.”

One improvement included in the final rule is the clear exclusion of quarry and construction pits that NSSGA specifically requested. “While we appreciate the clarity for existing operations not being considered waters of the U.S., the agency failed to reduce confusion and add clarity when that was the rule’s intended goal,” said Johnson.

For example, existing EPA guidance clearly excludes dry streams from the agency’s purview. Because these typically dry land features are pervasive on the landscape, particularly in the arid southwest, deeming them waters of the U.S. unnecessarily increases federal jurisdiction over them. The rule also allows for jurisdiction over many ditches, which goes far beyond congressional and court limits.

“What this rule really does is allow federal control over vast areas of land that can stop or delay vital projects needed to provide for our infrastructure,” Johnson added.

"This rule will impact a wide range of normal U.S. industrial and agricultural activities, at a time when workers are just getting back on the job after eight years of tough economic times," said James G. Toscas, president and CEO of the Portland Cement Association (PCA). "This is simply the wrong kind of regulation at the wrong time."

Serious concerns were voiced in public comments when this rule was originally proposed. A key concern was that decisions on where the new rule would apply could be made by government officials on a case-by-case basis. EPA said that it addressed the public comments, but the final version of the rule had only cosmetic changes.

"We take environmental compliance very seriously," Toscas continued. "This rule will make it much more difficult for a cement production facility not only to comply, but also to even know whether it is in compliance. We also foresee construction projects being delayed and stalled as contractors struggle to figure out how to comply with complex new requirements that go far beyond anything Congress intended with the Clean Water Act."

In response to public opposition to the WOTUS rule, the House of Representatives overwhelmingly passed bipartisan legislation that requires regulators to work with states, industry, and other stakeholders to develop practical ways to protect water quality. Similar legislation is now pending in the Senate.

"This is yet another example of government overreach that is unlikely to help the environment, but very likely to hurt the economy. Congress is right to send EPA back to the drawing board on this one," said Toscas.

“Instead of reaching a reasonable solution, the EPA has ignored millions of Americans and taken more control over private land in our country," said "Sen. John Barrasso (R-Wyo.) "There is bipartisan agreement that Washington bureaucrats have gone beyond their authority and have no business regulating irrigation ditches, isolated ponds and other ‘non-navigable’ waters as waters of the United States."

House Agriculture Subcommittee on Conservation and Forestry Chairman, Rep. Glenn ‘GT’ Thompson (R-Pa.), noted that the Obama Administration has reaffirmed its intentions to unilaterally expand its federal authority by finalizing the Waters of the United States Rule, despite strong bipartisan opposition from Congress, farmers, ranchers, aggregates producers and state and local governments.

"While I agree the statutory boundaries of the Clean Water Act must be more defined, this regulatory action does not move in that direction, but rather creates far more problems than the EPA and Army Corps of Engineers claim it would solve," he said

"Although the Administration has taken this action, I remain committed to solving these challenges through the legislative process.”