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Via Press Release
06/22/2014 10:14 AM

Some House Democrats joined Republicans May 29 in

objecting to a proposed EPA rule that would determine what

waters should be subject to wetland permits.

The Democrats and the Republicans said at a hearing of the House

Small Business Committee that the Environmental Protection Agency failed to consider the impact of new

wetland definitions on small businesses.

The 14 Republican members of the committee asked EPA Administrator

Gina McCarthy to pull the regulations and perform an economic impact

analysis before proceeding with the March 25 proposal.

“We believe the agencies should withdraw the proposed rule and

conduct the required small business outreach and analysis before

proceeding with the rulemaking,” said the committee Republicans, led

by chairman Sam Graves (R-Mo.)

The Republicans complained that the proposed rule was fuzzy about

what would and would not be subject to a new definition. “The

proposed definition includes a number of imprecise and broadly-defined

terms such as ‘adjacent,’ ‘riparian area’ and ‘floodplain’

that do not clearly delineate which waters are covered,” said the

Republicans. “For the first time, ‘tributary’ is defined and

includes bodies of water such as manmade and natural ditches.”

The Republicans were not alone in their complaints. Ranking committee

Democrat Nydia Velazquez (D-N.Y.) also agreed that EPA did not

document the impact of the rule on small businesses, and should.

“Small businesses need a rule that works for everyone and not just a

few,” she said, noting some businesses, such as recreation, would

gain. “With this in mind it is concerning that no regulatory

flexibility analysis was performed. While the agency certified this

rule would not have a significant economic impact on a substantial

number of small entities it provided no justification for this

finding.”

Her fellow Democrat Kurt Schrader (D-Ore.) was more cryptic. “This

is an abomination,” he said.

As mentioned Velazquez did document benefits to recreation companies.

“These include companies engaged in recreation, tourism, hunting,

fishing and boating,” she said. “For those companies their

livelihoods are often tied to clean water.”

When EPA first proposed the rule, bird hunters and fishermen were

particularly enthusiastic about it. Said Trout Unlimited CEO Chris

Wood, “Many of these small waters provide vital spawning and rearing

habitat for trout and salmon. Simply stated, the proposal will make

fishing better. Restoring protections to these waters ensures healthy

habitat for fish and a bright future for anglers.”

EPA and the Corps of Engineers in their proposal said that the rule

would go beyond the existing regulation that only requires a Section

404 Clean Water Act permit for navigable waters. The new proposal

would also require permits for seasonal streams, wetlands near

navigable waters and, other waters.

The livestock industry said the proposed rule is not clear about what

waters would and would not be regulated, with ranchers subject to

fines as much as $37,500 per day for not obtaining permits. Said Jack

Field, cattle rancher and Washington Cattlemen’s Association

executive vice president, “The proposal would include ditches as

Water of the U.S. if a regulator can distinguish a bed, bank, and

ordinary high water mark. The proposal also would make everything

within a floodplain and a riparian area a federal water by considering

them ‘adjacent waters.’”

The Supreme Court was evenly divided in a June 19, 2006, decision,

Rapanos v. U.S. Nos. 04-1034 and 04-1384, which muddied the regulatory

waters. On the one hand the court did uphold the authority of the

Corps and EPA to regulate water bodies. But crucially it also limited

the definition of a water body to navigable waters without clearly

defining navigable waters.

The Bush administration relied on the court decision to limit

permitting to navigable bodies. The Obama proposal would expand the

permitting.

There is a long way to go. The agencies are now holding a 90-day

comment period. More information: www.epa.gov/uswaters.

From Public Lands News June 13, 2014

Copyright © 2014 Amador Ledger Dispatch
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