EPA chief: We made ‘substantial changes’ to water regulations

Environmental Protection Agency (EPA) Administrator Gina McCarthy said officials made “substantial changes” to the clean water rule it finalized Wednesday after sorting through public comments on the proposal.

The EPA’s rule designates which small waterways the agency can regulate under the Clean Water Act. Republicans, rural groups and agriculture interests have slammed it as an extension of federal power, one that could give the EPA authority over a range of new bodies of water. 

{mosads}But McCarthy said that’s not the case, noting that the rule maintained and expanded exclusions for farming, ranching and forestry, especially after the public comment period.

“They asked us about ditches, and they asked us about ditches, and they asked us about ditches, so we not only kept all of the exclusions and exemptions for agriculture that are in the current rule, we actually expanded those,” she said on a press call with reporters. 

The new Clean Water Rule has a more narrow definition of tributaries that fall under the EPA’s purview, McCarthy said, and leaves out ditches unless they function as tributaries, flowing downstream into other bodies of water.

“If you’re not a tributary and you’re a ditch, you ain’t in,” she said. “We got as clear as we could be that unless you act like a tributary and you have the features of a tributary, you are simply not jurisdictional under the Clean Water Act.”

The rule also defines the situations in which the EPA will review water use permits. It clarifies the EPA’s approach to issues like erosion features, such as gullies and rills, water impoundments like dams, and constructed wetlands. The rule, McCarthy said, does not add new permitting requirements for agriculture interests.

“I think you will see that we made substantial changes that basically made this rule clearer, crisper and did the job that we were supposed to do and I’m very proud of the work we did here,” she said.

The EPA’s assurances are unlikely to relieve concerns over the rule’s impact on agriculture. The industry and its legislative allies have been critical of the water rule since officials released it in its proposed form last year. 

That criticism continued after the final rule’s release on Wednesday. Sen. Steve Daines (R-Mont.) said the rule would “cripple Montana’s agriculture and natural resources industries.” Rep. Chris Collins (R-N.Y.) called it “a continuation of [the Obama administration’s] regulatory assault on our nation’s farmers.”

Bob Stallman, the president of the American Farm Bureau, a group long opposed to the rule, said it was “undertaking a thorough analysis of the final rule.”

Sen. James Inhofe (R-Okla.), the chairman of the Senate Environment and Public Works Committee, said, “instead of fixing the overreach in the proposed rule, remarkably, EPA has made it even broader.”

The final rule puts regional water features such as “prairie potholes” — shallow wetlands often found in the Midwest — within the agency’s jurisdiction so long as they connect to a wider network of flowing water. 

“In particular regions of the country, there are unique water bodies that are also scientifically shown to influence the health of downstream waters and therefore may be protected under the Clean Water Rule,” said Jo-Ellen Darcy, assistant secretary of the Army for Civil Works. 

Congressional Republicans have said they will continue to fight the water rule. The House has passed a bill to repeal the measure and a group of senators, including Inhofe, have pitched a bill to overturn the rule and instruct the EPA on how to write a new one.