Hearing

Panel I

Panel II

In late April, the President published a proposed rule that will dramatically extend the reach of the federal government when it comes to regulating ponds, ditches, and other wet areas.  This is yet another example of a disturbing pattern of an Imperial Presidency that seeks to use executive action and brute force while ignoring Congress and the Supreme Court.

Unilaterally broadening the scope of the Clean Water Act and the federal government’s reach into our everyday lives will adversely affect the Nation’s economy, threaten jobs, invite costly litigation, and restrict the rights of landowners, states, and local governments to make decisions about their lands.

This massive federal jurisdiction grab was the subject of failed legislation in the 110^th and 111^th Congresses.  Strong bipartisan opposition prevented those bills from moving forward.

Now the Obama Administration is trying to administratively do an end-run around Congress and achieve this federal power expansion through a rulemaking.  This proposed rule supposedly aims to “clarify” which waterbodies are subject to federal jurisdiction under the Clean Water Act.

But I am extremely concerned that there are serious flaws with this rule.  Twice, the Supreme Court has told the agencies that there are limits to federal jurisdiction under the Clean Water Act, and that they had gone too far in asserting their authority.  Now the Administration has taken those Supreme Court rulings and cherry-picked discreet language from them in an attempt to gain expanded authority over new waters, rather than heeding the directive of the Court.

It is the responsibility of Congress, and not the Administration, to define the scope of jurisdiction under the Clean Water Act.

This rule will have sweeping economic and regulatory implications for the entire Nation.  Therefore, it is vitally important that the agencies correct the deficiencies with this rulemaking and develop a rule that is credible, reasonable, and consistent with the law.

Regulation of the Nation’s waters must be done in a manner that responsibly protects the environment, without an unnecessary and costly expansion of the federal government.  We can continue to protect our waters without unreasonable and burdensome regulations on our businesses, farmers, and families. 

On April 21st of this year, the EPA and Army Corps of Engineers published a proposed rule in the Federal Register that, according to the agencies, would “clarify” the scope of federal jurisdiction under the Clean Water Act.  After reviewing the proposed rule, I have serious concerns about the rule and the process the agencies are following to develop it.

Since 1972, the Clean Water Act has been instrumental in dramatically improving the quality of the Nation’s waters.  Fundamental to that progress has been the federal-state partnership, which recognizes that not all waters need to be subject to federal jurisdiction, and the states should have the primary responsibility of regulating waters within their individual boundaries.

However, I am concerned this rule will undermine that federal-state partnership and erode state authority by granting sweeping new federal jurisdiction to waters never intended for regulation under the Clean Water Act, including ditches, man-made ponds, floodplains, riparian areas, and seasonally-wet areas.

In promoting this rule, the agencies are implying to the public that massive amounts of wetlands and stream miles are not being protected by the states, and that this rule, which will essentially federalize all waters, is needed to save them.  However, nothing is further from the truth.  States care about and are protective of their waters.

I also am concerned how the proposed rule misconstrues and manipulates the legal standards announced in the SWANCC and Rapanos Supreme Court cases, effectively turning those cases that placed limits on federal Clean Water Act jurisdiction into a justification for the agencies to expand their assertion of federal authority over all waters nationally.

The agencies had an opportunity to develop clear and reasonable bright line rules on what is jurisdictional versus not, but they instead chose to write many of the provisions in the proposed rule vaguely, in order to give federal regulators substantial discretion to claim federal jurisdiction over most any water or wet area.  This is dangerous because this vagueness will leave the regulated community without any clarity and certainty as to their regulatory status and will leave them exposed to citizen suits.  In addition, since many of these jurisdictional decisions will be made on a case-by-case basis, this will give the federal regulators free rein to “find” jurisdiction.

This rule, in essence, will establish a presumption that all waters are jurisdictional and will shift, to property owners and others in the regulated community, the burden of proving otherwise.  This rule will set a very high bar for the regulated community to overcome.  Nevertheless, the agencies continue to claim that no new waters would be covered by the rulemaking.

The agencies cannot, through guidance or a rule, change the scope and meaning of the Clean Water Act, as they are trying to do here.

I also am troubled that the sequence and timing of the actions the agencies have been taking to develop this rule are undermining the credibility of the rule and the process to develop it.

First, instead of initiating a rulemaking process by soliciting input from, and developing consensus with, the general public, scientific communities, and federal and state resource agencies on how to identify the appropriate scope of jurisdiction, the agencies rushed ahead on their own to develop draft “guidance” that would, by the agencies’ own admission, “increase significantly” the scope of the Clean Water Act’s jurisdiction over more waters and more provisions of the Act.

Then, after facing substantial bipartisan opposition to the expansive new guidance, the agencies proceeded ahead, again on their own, with a rulemaking that is simply based on that expansive guidance.

And, to hide the inadequacies of the rulemaking process that the agencies have embarked on, EPA decided to develop a so-called “scientific” study that is supposed to provide a basis for determining the reach of federal jurisdiction under the Clean Water Act.

It is disturbing that EPA intentionally precluded from the study a review and discussion of scientific concepts that are highly relevant to determining which waters should be subject to Clean Water Act coverage.  The interconnectedness of the science and policy issues here warrants rigorous scientific peer review prior to a rule’s crafting.  However, instead of waiting until the science study was completed, the agencies wrote the rule long before the study’s report has been peer reviewed and finalized.

The agencies also took steps to hide the regulatory impacts of the rulemaking by preparing a flawed economic analysis that did not comprehensively assess all costs and benefits.

This is very troubling because this rule, if not carefully crafted, will have sweeping economic and regulatory implications for the entire Nation, by adversely impacting nearly all sectors of the economy, threatening jobs, increasing compliance costs, restricting the rights of landowners, inviting costly litigation, and undermining the ability of states and local governments to make decisions about their lands and waters.

Finally, I am pleased to hear that the agencies have just announced a 91-day extension to the public comment period for the proposed rule.  However, the agencies should extend the comment period on the proposed rule until after the EPA Science Advisory Board has completed its review of the “science” study and the study’s report is thoroughly vetted to ensure that any final rule is based on the final, peer-reviewed report.