Majority of House tells EPA to back off Clean Water Act rule

Published online: May 07, 2014
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Led by U.S. Representatives Chris Collins (R-NY) and Kurt Schrader (D-Ore.), 231 lawmakers in the U.S. House of Representatives sent a letter to the EPA and U.S. Army Corp of Engineers to back off its proposed rule to expand federal control under the Clean Water Act.

The proposed rule would redefine “Waters of the United States” under the Clean Water Act based on a narrow opinion by Justice Anthony Kennedy in a 2006 Supreme Court decision that said an isolated water, like a stock pond or a ditch, doesn’t not have to have a surface water connection to a downstream navigable water to be considered a “Waters of the United States.”

Justice Antonin Scalia wrote the plurality opinion on the case, and his opinion differed from Kennedy’s by saying that  “waters of the United States” include “only those relatively permanent, standing or continuously flowing bodies of water” like streams, rivers and lakes. Justice Scalia specifically noted that “waters of the United States” do not include channels that only hold water periodically, and are only wetlands with a continuous surface connection to bodies of water that are “waters of the United States.”

EPA and the Corps chose to base the final rule on the Kennedy opinion. That is one concern the lawmakers raised in the letter. “Contrary to your agencies’ claims, this would directly contract prior U.S. Supreme Court decisions, which imposed limits on the extent of federal CWA authority,” the lawmakers stated in the letter. It went on to say that “Based on a legally and scientifically unsound view of  the “significant nexus” concept espoused by Justice Kennedy, the rule would places features such a s ditches, ephemeral drainages, ponds (natural or manmade), prairie potholes, seeps, flood plains, and other occasionally or seasonally wet areas under federal control.”

Congressman Collins says enough is enough with regard to federal overreach on U.S. farms and ranches. “When the bureaucrats at the EPA decide to call a divot in the ground that fills with rain a ‘navigable waterway’ under the CWA, we know our federal government has run amuck. The fact that the EPA and USACE are now looking to formally broaden the definition of ‘navigable waters’ is an insult to hard working farmers all across this country” he said.

The letter also raised concerns with the economic analysis on which the proposed rule is based. In the agency’s analysis, it was determined that the proposed rule would result in a 2.7 percent increase in jurisdictional determinations and would impact an additional 1,332 acres nationwide under Section 404. They applied that 2.7 percent increase across other EPA permitting programs. The agencies determined that the draft proposed rule would result in costs between $133 million and $231 million annually. Based on this, the agencies have said the rule would not have a significant economic impact. The lawmakers disagree, saying errors in the analysis “call into question the veracity of any of the conclusions in the economic analysis.”

House Natural Resources Chairman Doc Hastings (R-Wash.) says the proposal is a massive power grab that must be stopped. “Under this plan, there’d be no body of water in America – including mud puddles and canals – that wouldn’t be at risk from job-destroying federal regulation,” he says.”

In addition to having bipartisan support from more than half of the members of the U.S. House of Representatives, more than 84 organizations representing farmers and ranchers across the country endorsed the letter calling on the rule to be withdrawn.