EPA's Clean Water Act Jurisdiction Rulemaking Delayed Indefinitely

James Goodwin

March 9, 2012

Inside EPA is reporting that yet another critical EPA rulemaking is now being delayed indefinitely.  This time it’s the agency’s rulemaking to codify a draft guidance clarifying whether Clean Water Act protections apply to wetlands and other marginal waters.

EPA had projected on its online rulemaking gateway that it expected to issue a proposed rule this month. In the recent  Issue Alert that CPR President Rena Steinzor and I wrote, we were skeptical about this deadline, because the EPA has not yet even sent a draft proposal to the White House Office of Information and Regulatory Affairs (OIRA) for centralized review—a process that often takes several months, and in some cases well over a year.

The Inside EPA article notes that the EPA’s rulemaking gateway was changed at some point since March 5th, so that it now provides no deadline for issuing a proposal.  The article also says that Ellen Gilinsky, senior policy adviser for EPA’s Office of Water, said at an event on Monday that “We're continuing to work with the Corps on a rulemaking, but we have no schedule right now.”

The rulemaking has drawn fierce opposition by the agricultural and oil and gas development industries, among others, as well as by their allies in Congress, because it would effectively expand protections for these waterbodies, which provide such invaluable ecosystem services as controlling non-point source pollution, preventing flooding, and providing critical habitat to endangered and migratory species.  The rule will eliminate the regulatory uncertainty that has cropped up following a muddled Supreme Court opinion, which has caused drops in enforcement and protection of our waters. Ironically, industry and congressional Republicans blame just such regulatory uncertainty for holding back the economy, as part of their crusade against critical safeguards.

This latest development is consistent with the broad findings of our Issue Alert—namely, that the Obama Administration has shut down much of its effort to craft new safeguards to protect people and the environment, at least until after the election.  The Issue Alert provided an update on a white paper issued in April of 2011, in which several CPR Member Scholars and staff identified 12 critical regulatory actions then under development that were in danger of not being completed during the current presidential term.  The Issue Alert found that the vast majority of these regulatory actions had been subjected to new delays in the past few months, and that, if these delays persisted, only parts of two of these regulatory actions would be completed before the November elections. Of course, regulations completed at the tail end of the President's term, would be vulnerable to reversal next year, should the President not be reelected.

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