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EPA’s WOTUS Rule Only Muddies the Waters

As the old saying goes, if it’s not broken, why fix it? Especially when it has worked for decades and puts at jeopardy future advancements and innovation? Sadly, that is exactly what is happening in Washington.

A proposed rule by the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers related to the definition of “waters of the U.S.”  (“WOTUS”) would expand both agencies’ authority under the Clean Water Act, allowing the federal government to extend its reach into most bodies of water across the United States—waters that are in many cases already being managed by their states.

Since 1972 the Clean Water Act has been working—and working well. The Act is largely implemented by the states in a cooperative relationship with federal authorities. In turn, the states oversee and regulate their waters through permits that are obtained and complied with by industries, such as the electric power sector. The Clean Water Act is not designed to be one-size-fits-all, and the cooperative approach between the federally protected waters and states’ authority has proven to be an appropriate means of protecting the nation’s water quality. 

In two separate decisions, the Supreme Court has said that there are limits to EPA’s authority under the Clean Water Act. If the agency can regulate every water body from the largest to the smallest, and even those areas that aren’t wet most of the time, as it is proposing in this rule, then there are effectively no limits to the agency’s regulatory reach.

So, what does this really mean for the environment? EPA claims that it is proposing its broad expansion to benefit the environment, yet ironically, the WOTUS rule would create impediments to the electric power sector’s ability to build and maintain cleaner and renewable energy technologies. The rule would prolong the transition to a cleaner fleet in part because of new and uncertain permitting requirements. This is in direct conflict with President Obama’s executive order to streamline permitting for cleaner energy infrastructure.

The electric power industry considers its responsibility to environmental stewardship as something that goes beyond what is required by law. Not only are electric companies already regulated—and have been under the Clean Water Act for years—they are transitioning to a cleaner generating fleet with more renewable fuel sources. Lengthy permitting processes will only delay this transition. 

On the cost side, electricity prices could increase as more red tape is applied, hitting consumers directly in their wallets.

Is it possible to do even more to protect water quality? Yes, of course, and Congress has determined that the best way to do that is by strengthening state-led programs that promote best practices and other land uses, not through additional federal regulation that stifles those activities.  

The widespread and bi-partisan backlash to EPA’s proposal clearly signals that the agency has missed the mark. EPA and the Army Corps of Engineers need to withdraw the flawed proposal and engage stakeholders in a more thoughtful and comprehensive discussion to determine the best way forward that reduces uncertainty without hindering infrastructure investment and innovation.
On November 14, EEI submitted comments in response to EPA’s proposed rule. The comments reflect the concerns of EEI’s members, and the significant concerns for electric utilities. The comments also urge the agencies to withdraw the proposed rule and instead engage in a dialogue with the regulated community and the states and localities that are responsible for managing water quality nationwide to develop more precise changes to the existing regulations defining waters of the U.S. to address those consequences.