ROUGH WATERS: Politicians, ag groups continue to ask EPA to clean up proposed Clean Water Rule
February 6, 2015
Everyone thinks clean water is important. The rough sailing the proposed Waters of the U.S. (WOTUS) rule has encountered has been from disagreement over what measures are required to keep that water clean.
The current regulatory definition of WOTUS is not quite 400 words. The proposed definition is more than 1,000.
No one is arguing that the extra words are necessary. Numerous private and governmental agencies have been asking to have the rule clarified for a decade. Supreme court cases, like Rapanos v. United States, forced the agencies to re-examine the rule and provide clarity.
The nearly 1 million comments on the proposed rule indicate the EPA and U.S. Army Corps of Engineers may not have accomplished that.
Feb. 4, U.S. EPA Administrator Gina McCarthy and Assistant Secretary of the Army (Civil Works) Jo-Ellen Darcy testified in front of the U.S. Senate Committee on Environment and Public Works and the U.S. House committee on Transportation and Infrastructure on the proposed Clean Water Rule.
M. Reed Hopper, principal attorney at the Pacific Legal Foundation, who represented John Rapanos in Rapanos v. United States, submitted written testimony. He wrote, "Unfortunately, the proposed rule is inconsistent with that decision. Contrary to that decision, and others, that have sought to impose limits on federal jurisdiction under the Clean Water Act, the proposed rule is undoubtedly the largest expansion of power ever proposed by a federal agency. It would far exceed any prior statutory interpretation, usurp the power of the States to manage local land and water resources, and nullify constitutional limits on federal authority."
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Many of the committee members involved in the hearing echoed Hopper's concerns, adding that it seemed to add more confusion than clarity for those who had read the 88-page document.
Mark Meadows, (R-N.C.) asked, "If stakeholders are not endorsing this rulemaking, what's the problem?"
"It's a complicated rulemaking and some areas are clearer than others and we'll be working with them on it," McCarthy replied. "But the agriculture community deserves to have more certainty than what is available to them today. And we are going to try to do that in working with the agriculture community. We have not done anything to narrow exclusions or exemptions in the Clean Water Act. In fact, we are expanding those exemptions and exclusions in this rule."
"What they say is clearly different than the details of their proposal. We are smart enough to read the details and know that matters," said Don Parrish, senior director of regulatory relations for American Farm Bureau Federation.
Florida attorney general E. Scott Pruitt also testified before those two committees. "Simply put, the proposed rule is a classic case of overreach and flatly contrary to the will of congress, who, with the passing of the Clean Water Act, decided it was the states who should plan the development and use of local land and water resources…Though we'd like to trust the EPA's intent, something doesn't add up. This rule smells far more than a clarification. Indeed, it reeks of federal expansion, overreach and interference with local governments.
While many expressed concerns with the rule, some senators and representatives testified in support of the rule.
Grace Napolitano (D-Calif.) said, "Our nation has never recognized a right to pollute, which is what opponents of this rule are asking for. Polluters who would rather preserve the regulatory shadows created by the former administration where they can fill wetlands or destroy waters with little to no accountability. If private interests are successful in blocking this rule, it is the public who will suffer."
The appropriations committee added a rider that affected the proposed rule to this year's EPA funding bill. The rider forced the EPA and the Army Corps of Engineers to withdraw a controversial interpretive rule that is intended to clarify agricultural conservation practices deemed exempt from Clean Water Act dredge-and-fill permits.
"That was a step in the right direction. It addresses our concern with the interpretive rule, but it doesn't address the underlying concern we have with the overreach of EPA's proposed rule," Parrish said.
The Texas and Southwestern Cattle Raisers Association issued a press release about the interpretive rule. "While I am pleased the EPA withdrew this component of their flawed water rule proposal, it doesn't address the overall issue and it actually wasn't their decision to take this action," said Pete Bonds, TSCRA president. "Instead, Congress had to pass a bill and force their hand to scrap this small part of the larger overreaching EPA water rule proposal."
"I think there's really a trust gap between both your agencies and our farmers," said Representative Rodney Davis (R-Ill.). Davis introduced a component of the Farm Bill that required the EPA to include members of production agriculture on their Science Advisory Board. "I want to make it very loud and clear that our intent in this bipartisan provision was to have voices on this committee that didn't only have scientific expertise, but real-life experience with production agriculture. Having voices on this committee with real-world experience can help bridge this trust gap."
"I would look forward to the establishment of this committee, so that early on in every process we have an ability to hear what these informed stakeholders have to say," McCarthy said.
Bob Gibbs (R-Ohio), asked McCarthy if the EPA and Corps would be publishing a supplemental rule because of all the concerns, to give the public a chance to provide feedback on the changes.
"A supplemental would be required only if we went outside the boundaries of what we already teed up in the proposal and at this point we intend to finalize the rule," McCarthy said. She later said that was likely to happen this spring.
Senator John Barrasso (R-Wyo.) announced during the hearing that he would be working with committee chairman Jim Inhofe (R-Okla.) to introduce legislation to stop "this bureaucratic overreach. I urge my colleagues to once again join me in this effort with this legislation."
In a press release, Wyoming governor Matt Meade said, "These rules were not developed in consultation with states. They have far-reaching impacts on agriculture, industry, private property and state control of water and they need to be withdrawn. I am pleased the agencies have begun the withdrawal process. I look forward to more."
If the legislation to block the rule fails and the rule is finalized, the EPA and Corps can expect legal challenges, Hopper said. "They're pretty arrogant about it. They're going to go forward until the court says you can't. I think they need to rewrite the rule and make sure it comports with the language of the act, the precedent set by the Supreme Court and shows some limiting factor under the constitution so it doesn't exceed federal authority."