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POLITICS: PennAve

Proposed EPA water rule lights up Capitol Hill fireworks

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Agriculture,EPA,PennAve,Gina McCarthy,Energy and Environment,Kay Hagan,Zack Colman,Water Pollution,John Barrasso

First, the EPA was coming for farmers' and ranchers' private property. Next, roadside ditches. And, finally, Fourth of July fireworks.

Environmental Protection Agency Administrator Gina McCarthy described the haranguing her agency has received over its proposed "Waters of the U.S." rule this way: "Just ludicrous."

"We're not overreaching here, we're not expanding our jurisdiction. We're trying to provide clarity," McCarthy said in a Tuesday media call previewing a trip to Missouri to discuss the proposed rule, which the agency says will clearly state which bodies of water will require permits for nearby development and certain practices under the Clean Water Act.

The proposed rule would state that the EPA has jurisdiction over water that connects to navigable waters: Think a wetland connected to a stream. But the push has ginned up Capitol Hill debate from the Right, which sees it as a massive EPA land grab -- 10 Republican senators even claimed in a letter last week that it could threaten future fireworks shows by encouraging civil lawsuits over water pollution caused by the used fireworks.

EPA, for its part, said, "Nothing in this proposal has anything to do with fireworks and never will."

McCarthy noted that the proposed rule, with a list of exemptions for some farming practices, has caused some concerns. Much of that, however, arises from misunderstanding, she said.

"That's one of the myths that we need to knock down. We're not narrowing exemptions — we're expanding them and providing clarity so nobody needs to worry," McCarthy said.

The proposed rule has been the subject of House hearings, and on Tuesday House Republicans on the Interior and Environment Appropriations subcommittee released a draft fiscal 2015 spending bill prohibiting the proposed rule. In the Senate, Wyoming Republican John Barrasso is pushing an amendment to Sen. Kay Hagan's, D-N.C., sportsmen's bill this week that would block its implementation. Republicans are threatening to block Hagan's bill if Majority Leader Harry Reid, D-Nev., doesn't allow an open amendment process.

Much consternation has arisen in the agricultural community over an "interpretive rule" adjoining the proposed rule that codifies specific conservation and farming exemptions from the Clean Water Act. Some groups have interpreted the move as a thinning of exemptions and have slammed the EPA for making it effectively immediately without undergoing public comment.

The American Farm Bureau Federation, a major trade group that has led the charge against the proposed rule, upped its lobbying spending 25.5 percent, from $550,000 to $690,000, between the final quarter of 2013 and the first quarter of this year, according to federal lobbying disclosure forms. Federation President Bob Stallman says the proposal rule is a way for the EPA to "micro-manage" farming and that it has confused farmers.

"EPA is deliberately misleading the regulated community about the impacts on land use. If more people knew how regulators could use the proposed rule to require permits for common activities on dry land, or penalize landowners for not getting them, they would be outraged,” Stallman said in a House Water Resources and Environment Subcommittee hearing in June.

But supporters of the proposed rule say it clears up a pair of Supreme Court decisions from the early 2000s that chipped away at some wetlands protections under the Clean Water Act. They contend the rulings contributed to the first observed decline in U.S. wetlands acreage -- a 140 percent drop between 2004 and 2009, according to a U.S. Fish and Wildlife Service report released last year -- since the Clean Water Act was enacted in 1972.

"This rule will not restore the Clean Water Act to the time when it was governing most waters, but this will get us a chunk of it back," said Josh Saks, legislative director with the National Wildlife Federation. "This will not bring us the most onerous Clean Water Act that there has ever been. So I think there is a lot of folly."

While McCarthy said the interpretive measure is intended to limit anxiety, she has said the exemptions offered to agriculture producers as well as the EPA's authority over upstream waters — say, a wetland that rests at the head of a river — have always been in place.

The existing language, however, has muddied implementation because it often has required the agency to go into the field to determine whether landowners need permits to make adjustments to specific bodies of water.

"I think the big change is that if the water is clearly connected to other waters, then you know it's protected," said Mike Leahy, conservation director with sportsmen's group the Izaak Walton League. "Before that rule, it was less certain whether an upstream water source fell into the Clean Water Act."

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