EPA chief Gina McCarthy "told a Senate committee in March that the agency had received more than one million comments and nearly 90 percent favored the agency’s proposal," Lipton and Davenport write. McCarthy is expected to cite those comments to justify the final rule, which is expected today or next week. But critics say EPA violated federal law that prohibits agencies to "promote government policy or to support or oppose pending legislation."
EPA last year "sponsored a drive on Facebook and Twitter to promote its proposed clean water rule in conjunction with the Sierra Club," Lipton and Davenport write. "At the same time, Organizing for Action, a grass-roots group with deep ties to (President) Obama, was also pushing the rule. They urged the public to flood the agency with positive comments to counter opposition from farming and industry groups. The results were then offered as proof that the proposal was popular."
The rule has led to mass confusion, with Republicans and farmers saying it will expand EPA jurisdiction. EPA says that's not true and rules are meant to to tighten the definitions of ditches, tributaries and farm-field erosional features to narrow what areas fall under the law's jurisdiction.
Part of the confusion lies in the history of the rules, Davenport writes in another article for the Times. "The rule is being issued under the 1972 Clean Water Act, which gave the federal government broad authority to limit pollution in major water bodies, like Chesapeake Bay, the Mississippi River and Puget Sound, as well as streams and wetlands that drain into larger waters."
"But two Supreme Court decisions related to clean water protection, in 2001 and in 2006, created legal confusion about whether the federal government had the authority to regulate the smaller streams and headwaters, and about other water sources such as wetlands," Davenport writes. "EPA officials say the new rule will clarify that authority, allowing the government to once again limit pollution in those smaller bodies of water—although it does not restore the full scope of regulatory authority granted by the 1972 law."
"EPA also contends that the new rule will not give it the authority to regulate additional waters that had not been covered under the 1972 law," Davenport writes. "People familiar with the rule say it will apply to about 60 percent of the nation’s waters."
"Farmers fear that the rule could impose major new costs and burdens, requiring them to pay fees for environmental assessments and to obtain permits just to till the soil near gullies, ditches or dry streambeds where water flows only when it rains," Davenport writes. "A permit is required for any activity, like farming or construction, that creates a discharge into a body of water covered under the Clean Water Act or affects the health of it, like filling in a wetland or blocking a stream." (Read more)