FYI.

This story is over 5 years old.

News

Here's Who's Pissed at Obama's Latest Environmental Protections

The Obama Administration says its expansion of the Clean Water Act protects steams that over 100 million Americans rely on for drinking water and lacked clear protections.
Photo by Matt Rourke/AP

The US Environmental Protection Agency (EPA) and Army Corps of Engineers issued a major new rule on Wednesday that clarifies and greatly adds to the scope of the waters that are protected under the Clean Water Act. Among other provisions, the rule now includes streams and headwaters that flow into other larger bodies of water that had already been protected.

The agency says the new rule protects streams that over 100 million Americans relied on for drinking water that "lacked clear protection before the Clean Water Rule."

Advertisement

For environmental groups like the Sierra Club and Environment America, the announcement represents a welcome clarification to what waters are protected from polluters.

"We have lived a long time with the confusion of what waters are protected," Dalal Aboulhosn of the Sierra Club told VICE News. "So this is a huge step forward in ending that confusion and clarifying the Clean Water Act."

Elizabeth Ouzts, spokeswoman for Environment America, echoed Aboulhosn.

"Over half of the nation's streams which feed drinking water sources for one in three Americans regained federal protection under the rule yesterday by the Obama administration," she told VICE News. "What it does, is it restores safeguards under the federal Clean Water Act to small streams and headwaters that had been vulnerable to development and pollution for nearly ten years."

[ooyalacontent_id="5ubGFzdDpe295wEZJzB8Jkg5kzdd4GLZ"player_id="YjMwNmI4YjU2MGM5ZWRjMzRmMjljMjc5" auto_play="1" skip_ads="0"]

Two Supreme Court cases — one from 2001 and the other from 2006 — muddied the waters about what was, and was not, protected by the Clean Water Act. The new rule aims to undo the limitations those cases placed over the act, which was enacted by Congress in 1972.

"This is the biggest step forward for clean water in a decade," Ouzts added. "It's very important. But ultimately it just provides a baseline of protection for our waterways, and that is that the Clean Water Act, our nation's bedrock clean water law, covers small streams, headwaters, wetlands, as well as major water bodies."

Advertisement

While some see the rule as important protection, others see it as overreach.

Lowell Rothschild, an attorney at Bracewell & Giuliani, represents what he refers to as the "regulated community" — entities that need to apply for permits to, for example, disturb or pollute a body of water that could be protected.

"The rule does continue to assert what I would call a fairly broad interpretation of the agency's jurisdiction under the Clean Water Act," Rothschild told VICE News. "It is a fairly aggressive view by the agencies of the waters which they are legally allowed to regulate under the act."

In light of the two Supreme Court decisions, he told VICE News, the new regulation was "overreach."

"If you look at the nature of the waters that the Supreme Court determined to not be jurisdictional in those cases, in my view, those same waters would now be considered jurisdictional if you applied the new final rule to them," Rothschild said. "And so if you look at what the Supreme Court said was not jurisdictional, and you compared that to the rule, I think there's some discord there."

The ruling, he said, could cause havoc for anyone — business owners or developers — seeking to somehow alter the landscape adjacent to waterways.

"What this means is that an entity that is in an area that wants to disturb the ground, and is within 100 feet of any feature that looks like it carries water at any time of the year, will need to hire a consultant to determine if that area is viewed by the agencies as a wetland," Rothschild said.

Advertisement

Related: No one seems to know who — or what — is poisoning North Carolina drinking water supplies

Then there's agriculture.

Will Rodger, director of policy communications at the American Farm Bureau Federation, told VICE News that it was too soon to tell what impact the final version of the rule would have on farmers.

"We're still studying it," he said.

Congressional Republicans have come out in opposition to the new regulations. Among them is Oklahoma Republican James Inhofe, who chairs the Senate Committee on Environmental and Public Works.

"Despite their assurances, it appears that EPA and the US Army Corps of Engineers have failed to keep their promises to Congress and the American people," he said. "In fact, instead of fixing the overreach in the proposed rule, remarkably, EPA has made it even broader."

Under the Congressional Review Act, the Senate, with 51 votes, could stop the new rule. But President Obama could veto that decision, said Environment America's Ouzts.

"It's the final lap that we wish we wouldn't have to take," she told VICE News. The Clean Water Rule "has public support, but still we have to go through this charade in the Senate."

Follow Rob Verger on Twitter: @robverger