Even as EPA gears up to release its final guide clarifying when intermittent streams, isolated wetlands and other marginal waters are subject to the Clean Water Act (CWA), the agency has dropped its schedule for crafting a rule to codify the policy -- raising doubts about whether officials will issue a proposal before the election.
Ellen Gilinsky, senior policy adviser for the agency's Office of Water, told the National Association of Counties (NACo) annual meeting March 5 that "We're continuing to work with the Corps on a rulemaking, but we have no schedule right now." Gilinsky was speaking to a panel entitled "Clean Water Act: Out with the Wash."
But Susan Parker Bodine, EPA's former waste chief now serving with the law firm Barnes & Thornburg, told the panel that while it was "speculation," some in Washington have suggested that the White House has sought to discourage EPA from issuing a formal proposal prior to the election, fearing it could be characterized by GOP candidates as hurting the economy.
An agency spokesman previously told Inside EPA that the agency and the Corps are moving to finalize the guidance "while continuing to work on a rulemaking."
As recently as March 5, EPA's website said the rulemaking was in the pre-proposal stage and a notice of proposed rulemaking could be published in Federal Register this month. But as of press time, the website has been revised to eliminate any deadline for the proposal. An EPA spokesman did not return a request for comment.
Critics of the agency's policy are now weighing legislation that would require the agency to issue a rule before issuing the guidance. "People are increasingly talking about moving legislation that would require the agencies to develop a rule before" . . . finalizing the guidance, Jon Pawlow, a GOP staffer with the House Transportation & Infrastructure Committee, told the NACo meeting.
Gilinsky also declined to comment on whether the agency has made any significant changes to its final guidance document on the issue, which it sent to the White House Office of Management & Budget (OMB) on Feb. 21.
But Bodine told the panel that "the rumors are that it hasn't changed much" from the draft version of the guidance that EPA and the Army Corps of Engineers jointly issued last April.
The document is expected to generally expand CWA jurisdiction over tributaries to traditionally navigable waters, wetlands adjacent to those tributaries and other marginal waters by offering a new interpretation of when discharges to these waters are subject to regulation. The document is aimed at clarifying legal uncertainty surrounding when marginal waters are subject to regulation under the water law.
The uncertainty stems from competing Supreme Court opinions in Rapanos et al. v. United States, where the court provided two tests for determining jurisdiction. One, authored by Justice Antonin Scalia, says that only "relatively permanent" waters that hold a "continuous surface connection" to a traditionally navigable water of the United States can be considered jurisdictional, but Justice Anthony Kennedy wrote an opinion that waters sharing a "significant nexus" with jurisdictional waterbodies can be subject to CWA regulations as well.
Push For Rulemaking
Critics of the draft guidance have strenuously urged the agency to scrap the document and start anew by launching a formal rulemaking, charging that the guide would create sweeping ramifications for industry and overwhelm state and local governments by imposing huge new unfunded mandates and threatening various local water quality control programs.
But critics acknowledge that their efforts to force EPA to drop the guidance and proceed with a rulemaking face high hurdles. Sen. Rand Paul (R-KY), for example, has introduced legislation, S. 2122, that would amend the water law to make EPA's planned clarifications unlawful. The bill would prevent the agency from regulating intermittent or ephemeral streams, waterbodies that are connected to navigable water by groundwater connections and wetlands without a "continuous surface connection" to waterbodies -- concerns that industry and other critics have raised in their comments on the draft guide.
But some industry and GOP sources have said the Paul bill sets up a long-term battle over the scope of EPA's CWA authority that could hinder critics' ability to appeal to Democrats by exacerbating a partisan divide, and that a narrower, swifter approach aimed at stopping the guidance is needed. "We're so far down the path now" that the Paul legislation would not be effective, even if it were to gain traction, which is unlikely, one industry source says.