Senators fight to stop EPA's takeover of all water

News
Apr 20, 2012

The U.S. Supreme Court last month ruled that two property owners could challenge an Environmental Protection Agency (EPA) determination that their property contained regulated wetlands, challenge the administrative order requiring the property owners to remove fill they had placed on their property, and challenge the outrageous fines EPA had imposed. While the Supreme Court’s ruling in Sackett vs. EPA did not determine that the Sackett’s property was not a wetland, it did provide the Sacketts the opportunity to challenge EPA’s exercise of jurisdiction under the Clean Water Act (CWA). The Sacketts will still have to spend more time in court, but in the meantime, the case has sent EPA to the drawing board, reworking CWA.

U.S. Sens. John Barrasso, R- WY, Jim Inhofe, R-OK, Dean Heller, R-NV, Jeff Sessions, R-AL, and 26 other senators recently introduced legislation to stop EPA from taking over all private water in the U.S. Called the “Preserve the Waters of the U.S. Act,” the senators hope to prevent EPA and the Army Corp of Engineers (Corps) from using their overreaching “guidance” to change legal responsibilities under CWA.

“President Obama’s EPA continues to act as if it is above the law. It is using this overreaching guidance to pre-empt state and local governments, farmers and ranchers, small business owners and homeowners from making local land and water use decisions,” said Barrasso. “Our bill will stop this unprecedented Washington power grab and restore Americans’ property rights. It’s time to get EPA lawyers out of Americans’ backyards.”

“As Americans struggle in this anemic economy, the administration continues to stifle job creation at every turn. Expanding EPA’s authority and threatening personal property rights will only discourage the economic growth we need for long term job creation. It is past time to cut through the red tape, and tear down the barriers to get the American people back to work. I look forward to working with my colleagues to get this bill passed,” said Heller.

“The Obama-EPA’s proposed water guidance greatly expands the Clean Water Act’s scope through a slew of new and expanded definitions. This approach is so unpopular, however, that it was originally defeated in the previous Democratic controlled Congress. Nevertheless, the Obama administration continues to move these policies forward. In addition to an increase in Army Corps jurisdictional determinations of as much as 17 percent, this change in guidance will also result in a change in the responsibilities of states in executing their duties under the Clean Water Act and a change in how individual citizens are governed by the Clean Water Act. These kinds of changes, and passing along more unfunded mandates to state and local governments, should never be done via a guidance document. I call on my colleagues from both the Senate and the House to join us in stopping EPA and the Army Corps from making these unprecedented regulatory changes through a guidance document. I look forward to swift action on this bill,” said Inhofe.

Proposed Act could stifle EPA

Water (from page 1)

The legislation is co-sponsored by Sens. Jim Inhofe, R-OK, Jeff Sessions, R-AL, Dean Heller, R-NV, Mitch McConnell, R-KY, Mike Enzi, R-WY, David Vitter, R-LA, John Boozman, R-AR, Mike Crapo, R-ID, Pat Roberts, R-KS, John Thune, R- SD, Roger Wicker, R-MS, Jim Risch, R-ID, John Cornyn, R-TX, Richard Lugar, R-IN, Chuck Grassley, R-IA, Tom Coburn, R-OK, Roy Blunt, R-MO, Marco Rubio, R-FL, Jon Kyl, R-AZ, Pat Toomey, R-PA, Dan Coats, R-IN, Rand Paul, R- KY, Mike Johanns, R-NE, Saxby Chambliss, R-GA, John Hoeven, R-ND, Jerry Moran, R-KS, Johnny Isakson, R-GA, Ron Johnson, R-OH, and Thad Cochran, R-MS.

Background

In May 2011, EPA and the Corps issued a draft guidance on “Identifying Waters Protected by the Clean Water Act.” This guidance document, which was sent in final form to the Office of Management and Budget on Feb. 21, 2012, significantly changes and expands what features are considered protected under the CWA. It makes substantial additions, such as a first time inclusion of ditches, ground water, potholes, gutters and other water features that may flow, if at all, only after a heavy rainfall.

These new regulations would make it harder for Americans to build in their backyards, grow crops, manage livestock, expand small businesses and carry out other activities on private lands.

Some of the major problems associated with the EPA’s draft CWA Guidance: • Regulation through Guidance: By issuing a guidance document as opposed to going through the rulemaking process, EPA and the Corps are bypassing the necessary public outreach required under the Administrative Procedures Act and failing to fully consider the legal, economic, and unforeseen consequences of their actions.

• Applies to all CWA Programs: In addition to the Corps §404 dredge and fill permits, the guidance applies to all CWA programs including §303 water quality standards, §401 state water quality certifications, §311 Oil Pollution Act (including SPCC), and §402 program (including NPDES permits, pesticide general permit, and storm water).

• Increasing Permits: EPA and the Corps affirm that this guidance will result in an increase in jurisdictional determinations which will result in an increased need for permits. In addition to more Corps §404 permits, State permitting authorities will be faced with more NP- DES permits and more entities will be subject to CWA requirements.

• Economic and Job Impacts: Additional regulatory costs associated with changes in jurisdiction and increases in permits will erect bureaucratic barriers to economic growth, negatively impacting farms, small businesses, commercial development, road construction and energy production, to name a few.

• Impact on State and Local Governments: Changes to the “waters of the U.S.” definition may have farreaching effects and unintended consequences on a number of state and local programs. The guidance creates significant unfunded mandates and preempts state and local authority.

• Conflicts with Supreme Court Rulings: The guidance uses an overly broad interpretation of the Rapanos decision. The effect is virtually all wet areas that connect in any way to navigable waters are jurisdictional. Both the plurality opinion and Kennedy rejected this assertion in Rapanos.

• Private Property Rights: Expanding federal control over intrastate waters will substantially interfere with the ability of individual landowners to use their property. — Traci Eatherton, WLJ Editor

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