House and Senate Republicans grilled Environmental Protection Agency head Gina McCarthy last week over a plan they say could give the agency control of “just about any place where water collects,” in the words of Rep. Bill Shuster (R-Pa.).
That’s just not so, says McCarthy, who claims the proposal by the EPA and U.S. Army Corps of Engineers would simply clarify the Clean Water Act of 1972 and the kinds of waterways that fall under the agency’s jurisdiction. In fact, she said, the rule change would reduce the agency’s control over certain waterways and more clearly detail the types of waters the agency may — and may not — regulate under the act.
McCarthy and assistant Secretary of the Army Jo-Ellen Darcy appeared last Wednesday before a joint House and Senate hearing on the issue. The hearing was held by the House Transportation and Infrastructure, and Senate Environment and Public Works committees.
The EPA began working on the “Waters of the United States” rule after two U.S. Supreme Court rulings raised questions over which waterways the act covers — particularly when it comes to those that flow only part of the year or are otherwise unnavigable.
McCarthy said the rule would not give the EPA more power to regulate the nation’s waters. In fact, she said, in some cases it would give greater deference to local and state governments.
“We are not seeking to expand the Clean Water Act at all,” McCarthy told the panel. “We are simply trying to define it better for everyone, so everyone is on the same page.”
Control Issues
But her assurances did little to appease Republicans. They insist the rule, as written, would chip away at the rights of the states, municipal governments, and private property owners, and give the EPA regulatory authority that goes far beyond the intended scope of the Clean Water Act. In its extreme, they say, that expanded authority could, theoretically, include everything from puddles, ditches, and swimming pools if the rule is passed as written.
“The rule would expand the reach of the federal government [and] undermine the federal-state partnership under the [act],” said Shuster, chairman of the House Transportation and Infrastructure Committee. “This rule wrongly assumes that states and local governments … don’t know how, or don’t care about, protecting their waters.”
Sen. Jim Inhofe (R-Okla.), chairman of the Senate’s Environment and Public Works Committee, agreed with Shuster, but went further. He broadened his criticism, saying the plan represents just the latest attempt by the Obama administration not only to expand federal jurisdiction, but also to usurp the power of Congress.
“Agencies can only carry out the authority Congress gives them,” Inhofe said. “They can’t create it unilaterally, and that’s what I believe is happening here.”
Sen. Dan Sullivan (R-Alaska) said EPA officials weren’t being honest with Congress — or, perhaps, with themselves, either.
“I just want to be frank here for a moment and say I don’t even think this is a close call,” said Sullivan, a former commissioner of Alaska’s Department of Natural Resources. “I don’t think the EPA has the power to issue this [rule] under the Constitution and the statute. I think you’re trying to change the statute and that power clearly belongs to Congress.”
Sullivan said the EPA should “start over and work with Congress” and the states to craft a new proposal.
“That’s how you show respect to not only the states, but to Congress,” he said.
GOP Grandstanding?
Democrats saw things differently, though, with some even saying the proposed rule doesn’t go far enough.
Sen. Sheldon Whitehouse (D-R.I.) was concerned that the EPA plan doesn’t do enough to curtail runoff of pesticides, manure, and other potentially toxic materials that flow from farmland into streams and, eventually, the ocean. Runoff from farms in Virginia’s Shenandoah Valley, for instance, was one of the primary reasons the Chesapeake Bay 160 miles to the east became so polluted, according to the EPA and other agencies. The agency is now leading an effort to clean up the bay, whose ecosystems are similar to smaller bays and inlets in Whitehouse’s home state.
It was clear at the hearing that many Democrats thought the GOP’s objections were nothing more than political grandstanding and had little to do with genuine concerns about the EPA’s reach.
“When I hear my colleagues say, ‘Oh my God, the Obama administration wants to protect a puddle,’ I thought, ‘it can’t be.’ Well, it isn’t,” said Sen. Barbara Boxer (D-Calif.), referring to concerns expressed by some in the GOP that certain stand-alone receptacles such as swimming pools, construction-related runoff, manmade ponds and, indeed, puddles, could be regulated under the rule.
“We don’t want to regulate a puddle,” she continued. “That’s ridiculous.”
Boxer also took aim at Republicans such as Inhofe who see the rule as another end run around Congress by President Obama and his administration.
“A lot of my colleagues here are arguing against a mythical rule,” she said. “I think the Obama administration has been very careful not to overreach on this. We keep hearing how this president issues more executive orders — and I know this is a rule, but just for the record, [Obama] has issued fewer executive orders than President Reagan, both Bushes [and] President Clinton.”
Rep. Pete DeFazio (D-Ore.) noted that rule changes made during the George W. Bush administration were often more oppressive to local governments and businesses than those in the current proposal.
“This will provide more definitions and more clarity than we had under the Bush rule,” DeFazio said.
As an example, he pointed out that new rule would clarify and simplify the law by providing a blanket exemption to all farming activity.
“Under the Bush rules we have now, there’s a lot of uncertainty,” he said. “But under this rule, farmers know they’re exempt.”
‘Vague’ Language
Rep. Thomas Massie (R-Ky.), though, wasn’t buying it. He said the proposal’s language is so vague, the EPA could justify putting almost any body of water under its purview.
“You say these rules are based on science, but when I think of science, I think of terms like gallons-per-minute, and feet-per-second, and 100-year-flood,” Massie said.
The proposed rule, however, has terms like “moderate to high water levels,” “significant impacts,” and similar language, he continued.
“Well, what the heck does that mean?” Massie asked McCarthy. Terms such as “moderate” are highly subjective and “could mean almost anything,” he said.
Shuster also took McCarthy to task for what many say was a process that did not include adequate input from the states, local governments and the public.
“I have a list here of 34 states that want you to revise or withdraw this rule change,” Shuster told McCarthy. “These are the people who have to deal with these things every day … so I don’t believe you’ve consulted with the states as full partners in this.”
On the contrary, McCarthy said, the EPA spent hundreds of hours with officials on the state and local levels getting their input on the proposal.
“The states were actively involved,” she said. “In fact, the states were writing to us saying, ‘stop asking for guidance and get on with the policymaking process.’”
Darcy, the assistant secretary of the Army, added that the period for public comment on the rule change was extended by four months last year to accommodate those who wanted to be heard.
“We’ve received nearly 1 million comments,” she said.
But Shuster was firm in his opposition, and referred back to Massie’s concerns about the proposal’s language being too vague. Leaving the rule open to interpretation, he said, makes the entire process, in some sense, moot.
“[My] concern is that the political appointees don’t get the real information from the folks down below,” he said. “And it’s not just at the EPA but all across the federal agencies. Laws come out and they’re significantly changed and interpreted the wrong way.”
He then alluded to an earlier comment by Boxer.
“My good friend from California talked about a ‘mythical rule,” Shuster said. “Well, it’s mythical to think that these laws and rules won’t be changed” by EPA staffers as they see fit, he added.
Unless Congress intervenes or the EPA extends the process or, as Republicans want, scraps the proposal and starts over, the agency will make the rule change final sometime this spring.
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