WASHINGTON – Yesterday, the Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) finalized a rule that is meant to define which bodies of water fall under federal jurisdiction under the Clean Water Act (CWA). The final rule is intended to bring clarity to an area of jurisdictional uncertainty, by specifying which waters are — and are not — considered “Waters of the United States” (WOTUS).
The WOTUS protected under the CWA are subject to a number of increased regulatory requirements, such as discharge limitations, permitting requirements and other enforcement measures. For this reason, many members of Congress and industry groups, including NACS, criticized the proposed rule when it was released in April 2014, noting that it would significantly increase federal CWA jurisdiction over the nation’s waters, increasing the cost to businesses operating in and/or near covered waters.
NACS submitted comments to the agencies last year, stating that the proposed rule would result in “an additional layer of regulatory complexity and cost associated with every investment and expansion decision that retailers make.” Rather than offer the certainty that fuel retailers need to operate their businesses, the proposal would result in heightened uncertainty—virtually every waterway in the United States would either be covered by the CWA or would “require an expensive analysis to confirm that it is not subject to CWA jurisdiction.”
Congress has demonstrated a keen interest in this issue. The House of Representatives passed legislation this month, sponsored by Representative Bill Shuster (R-PA), chairman of the Transportation and Infrastructure Committee, requiring the EPA and the Corps to withdraw the proposed rule and develop a new rule in consultation with state and local officials, stakeholders and other interested parties. A bipartisan group of Senators introduced similar legislation that recently was examined in a subcommittee hearing. Further, the House has passed funding legislation that would block implementation of the rule for a one-year period.
The EPA and the Corps state that the final rule will ensure waters protected under the CWA will be “more precisely defined, more predictable, easier for businesses and industry to understand, and consistent with the law and the latest science.” Nevertheless, many stakeholders remain concerned that the changes to the proposed rule that are in the final version are insignificant and it is likely the rule will be challenged in court.
Several lawmakers are also displeased with the final rule: Congressman Shuster described the final rule as “incredibly disappointing and disturbing” and a federal government “power grab,” and Senator John Barrasso (R-WY), author of the Senate legislation, called the final rule “outrageously broad.” Despite congressional opposition, President Obama is expected to resist efforts to block the rule’s implementation.
NACS will continue to analyze and review the nearly 300 page rule and outline any further developments.