Watered Down

With everyone so intensely focused on the Environmental Protection Agency’s bright, shiny object – its effort to regulate existing power plants, known as the Clean Power Plan – the agency’s other heavy-handed regulations have been lost in the shuffle.

In recent weeks, EPA has been moving on new rules to regulate airline emissions and heavy trucks at the same time they are looking to toughen the ozone standard, exploring modest new ways to limit natural gas drilling and imposing dramatic new restrictions on U.S. waterways.

The hit parade doesn’t stop at EPA.  The Interior Department is moving on dramatic plans to regulate endangered species and is hammering onshore and offshore oil and gas drillers with a bevy of new restrictions. The Energy Department takes the cake, though, by moving forward on over 20 efficiency regulations that will impact everything from stoves to air conditioning and furnaces over the next two years, all in the name of efficiency and climate.

While this regulatory onslaught is not unprecedented, it certainly is a higher volume than normal of expensive, burdensome and likely ineffective overreach.

The Waters of the U.S. Rule (WOTUS) may be the most outrageous power grab of all the rules being proposed.

The rule remains a very broad expression of the Obama Administration’s view of its authority under the Clean Water Act. The rule’s definitions leave no doubt that certain waters will always be considered jurisdictional by EPA and the U.S. Army Corps of Engineers. Now there is another group of waters that aren’t always jurisdictional by definition, but will most likely be so in practice. Some of these areas include prairies, potholes (often in the Midwest), bays and pocosins along the Mid-Atlantic coasts, western vernal pools and coastal prairie wetlands.

By grouping these area wetlands and adjacent navigable waters, EPA and its partners at the Army Corps of Engineers will, in practice, determine that most waters will fall under their jurisdiction, regardless of their size or isolation from the other waters. Given the geographic expanse of this set of waters, this is a significant extension of the agencies’ jurisdiction.

While it’s clear that the agency is grabbing more power, what is not clear is how farmers, builders, homeowners and industries will be able to comply with the rule and determine if they are on traditional navigable water or what the “high-water mark” may be.

A good amount of this regulation will be done on a case–by-case basis which is costly and burdensome because it requires a lot of individuals and businesses without providing them much clarity.

In fact, some legal experts think that  given the time and expense of the process, the risk of litigation and the relatively limited scope of waters likely to be excluded in case-by-case exemptions, most will concede to EPA by moving forward with permitting all wetlands and waters on their property, whether they are fall under WOTUS or not.

Congress is incensed by this new EPA rule.  The Senate Environment Committee has already held hearings and moved legislation to send the Obama administration rule back to the drawing board. The legislation, while unlikely to become law given strong opposition from most Democrats, sets new, clearer criteria for how a future rule should be developed and what streams and wetlands should and shouldn’t qualify for protection under the Clean Water Act.

Opposition to the EPA rule is even more fierce in the states, which are feeling the brunt of EPA’s regulatory power grab.  “This is an egregious power grab by the EPA and an attempt to reach beyond the scope granted to it by Congress,” said Oklahoma Attorney General E. Scott Pruitt. “This rule renders the smallest of streams and farm ponds subject to EPA jurisdiction. This means that the first stop for property owners is the EPA.”  Since Pruitt and 25 of his fellow attorneys general are already suing EPA on the climate rules, it is fair to expect more litigation here.

With states in revolt and opposition to the complex, burdensome and very controversial rule wide-spread, EPA has outdone itself on selling the rule.  In fact, the New York Times outlined a public relations campaign undertaken by the agency that borders on outright advocacy. The Times said EPA orchestrated a drive to counter political opposition and enlist public support in concert with environmental groups and a grassroots organization aligned with President Obama. They even changed the names from the black-marked “Waters of the US” to the “Clean Water Rule.” Who could be opposed to that?

This regulatory fight is just the beginning of many big battles that we will see over the remainder of the Obama’s time in office.  In the early days of the climate debate, conservatives were often mocked for saying the government was going to regulate everything right down to your backyard barbecue.  With its recent regulatory onslaught, maybe those who raised red flags had it right all along.

Frank Maisano isa senior principal in Bracewell & Giuliani’s government relations and strategic communications practice and is a Founding Partner in the firm’s Policy Resolution Group.