GOP Senators: Admin Being 'Wholly Misleading,' 'Belittling' Critics to Push Through EPA Water Rules

WASHINGTON -- Senators who have warned of a massive power grab with the Environmental Protection Agency's "clarification" of protected waters are accusing the Obama administration of intentionally misleading the public to push the rule through.

Earlier this month, the EPA extended the public comment deadline on the "Waters of the United States" rule to Nov. 14. A final rule is expected in the spring.

In March, the EPA began a “robust” 90-day “outreach effort” to gather input in shaping a final rule, maintaining that the directive is simply a clarification effort needed to define streams and wetlands protection after Supreme Court decisions in 2001 and 2006.

Critics, though, charged that the administration embarked on an unprecedented breach of private property rights without scientific basis.

The EPA wants to cover “most” seasonal and rain-dependent streams, which account for about 60 percent of stream miles in the country, arguing they have “a considerable impact on the downstream waters.”

Wetlands “near rivers and streams” would be protected under the CWA, and “other types of waters [that] may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant.” Critics say this could be construed to even include ponds and ditches on private property.

Overall, the EPA stated, a third of waters in the U.S. don’t meet Clean Water Act standards.

Last week, 29 Republican senators sent a letter to EPA Administrator Gina McCarthy and Army Secretary John McHugh, because of the new powers the Army Corps of Engineers would have, criticizing the administration's insistence on pursuing "this unprecedented executive overreach, regardless of the consequences to the economy and to Americans’ property rights."

"The proposed rule would provide EPA and the Corps (as well as litigious environmental groups) with the power to dictate the land use decisions of homeowners, small businesses, and local communities throughout the United States," states the letter, led by Sens. John Barrasso (R-Wyo.), Mitch McConnell (R-Ky.), David Vitter (R-La.) and Ted Cruz (R-Texas). "With few exceptions, it would give the agencies virtually unlimited regulatory authority over all state and local waters, no matter how remote or isolated such waters may be from truly navigable waters. The proposed rule thus usurps legislative authority and Congress’s decision to predicate Clean Water Act jurisdiction on the law’s foundational term, 'navigable waters.'”

"Because the proposed 'waters of the United States' rule displaces state and local officials in their primary role in environmental protection, it is certain to have a damaging effect on economic growth.  Increased permitting costs, abandoned development projects, and the prospect of litigation resulting from the proposed rule will slow job-creation across the country. Similar concerns led the Small Business Administration’s Office of Advocacy (SBA) to recently call for the withdrawal of the proposed rule."

The EPA constructed a special Web portal on the rule saying that it would not "regulate groundwater" or "expand jurisdiction over ditches." The rulemaking, it says, was requested by "many stakeholders."

But the senators say the assertion that the EPA was called to make such clarifications to the Clean Water Act is "wholly misleading."

"A request for a regulatory clarification does not provide a license to run roughshod over the property rights of millions of Americans. Yet the Obama Administration has used prior rulemaking requests as an excuse to unilaterally advance a regulatory agenda that defies the jurisdictional limits established by Congress when it enacted the Clean Water Act in 1972," they wrote.

"In fact, the proposed rule would harm the very landowners, small businesses, and municipalities that expressed interest in working with EPA and the Corps to address Clean Water Act jurisdictional issues."

The GOP lawmakers said the administration was showing bias by arguing that those who "choose clean water" should endorse the rule, and noted how McCarthy has referred to some questions about the rule as "ludicrous" or "silly."

"Belittling the proposal’s critics only furthers the impression that EPA has predetermined the outcome of the 'waters of the United States' rulemaking," the senators wrote.