- The Environmental Protection Agency and U.S. Army Corps of Engineers on Tuesday announced a rollback of clean water rules put in place by the Obama administration, garnering praise from electric utilities and criticism from environmental groups.
- The proposed revisions to the Waters of the United States (WOTUS) rule would narrow the definition of federally regulated waters to exclude ephemeral streams that run after rainfall or snowmelt. The agency previously said those make up 18% of U.S. streams and 51% of wetlands, but E&E News reports EPA now disavows those numbers.
- The move won praise from utilities, electric co-ops and mining interests, who had challenged the existing rule in court, arguing it defined federally regulated waters too broadly. EPA will take comments on the rule for 60 days after its publication in the Federal Register.
EPA's rollback of clean water protections would ease regulations on the utility sector, which has said the current rules burden them by requiring federal permits for energy projects near protected waters.
The rule, finalized in 2015, expanded the definition of federally protected waters to include ephemeral streams and more wetlands, sparking court challenges from utilities and agriculture interests.
The Supreme Court declined to put that case on hold last year — as it had done with Obama climate regulations — allowing the WOTUS rule to stay in place for a time.
On Tuesday, EPA officially sought to undo it, with Administrator Andrew Wheeler signing the new proposed rule in a ceremony at the agency's headquarters in Washington.
"For the first time, we are clearly defining the difference between federally protected waterways and state protected waterways," Wheeler said in a statement. "Our simpler and clearer definition would help landowners understand whether a project on their property will require a federal permit or not, without spending thousands of dollars on engineering and legal professionals."
But just which waterways would be federally protected under the new rule remains unclear. In a fact sheet, EPA said the new rule would exclude "features that only contain water during or in response to rainfall (e.g., ephemeral features); groundwater; many ditches, including most roadside or farm ditches; prior converted cropland; stormwater control features; and waste treatment systems."
A 2017 presentation from EPA obtained by E&E on Tuesday said that 18% of streams in the U.S. are ephemeral and 51% of wetlands do not intersect with navigable waters, meaning they would not be covered by the new rule.
But in statements to journalists on Tuesday, EPA officials said they do not think those figures are accurate. The datasets that went into that presentation "are not robust enough to accurately or precisely depict federally regulated waters," EPA said.
Despite confusion over the reach of the rule, utility trade groups praised it. The Edison Electric Institute, the trade group for investor-owned utilities, said it welcomes "a rulemaking that more clearly and narrowly defines which waterbodies are subject to federal jurisdiction and enhances opportunities to streamline energy infrastructure permitting."
"The 2015 rule was a significant overreach of the federal government's authority to regulate water and land," the National Rural Electric Cooperative Association said in a statement. "We look forward to working with regulators on a more workable and lawful regulation, one that allows electric co-ops to conduct maintenance and build new infrastructure without triggering additional and more onerous permitting requirements."
After the 60-day comment period, EPA can make changes to the proposed rule before finalizing it next year. When that happens, sector observers warn of a "huge fight."
"It will eventually end up in litigation that will likely go to the Supreme Court where it may very well be upheld if the Administration does a good job of substantiating its approach," said Ann Navarro, a partner at Bracewell, a law firm supportive of the new proposed rule. "The proposed rule represents a significant revision to how jurisdiction under the Clean Water Act has been approached for decades by narrowing areas subject to regulation."