The PJ Tatler

Lawmakers Urge Administration to Stop EPA Takeover of Ponds, Ditches, Streams

Lawmakers are urging Environmental Protection Agency Administrator Gina McCarthy and the White House to put the brakes on rulemaking that would drastically expand the agency’s jurisdiction under the Clean Water Act.

The redefinition of “waters of the United States” would include all ponds, lakes, wetlands and natural or manmade streams that have any effect on downstream navigable waters — whether on public lands or private property.

“Based on EPA’s draft scientific report, ‘Connectivity of Streams and Wetlands to Downstream Waters,’ and the agency’s commitment to rely on this report during the rulemaking process, we are concerned that EPA’s final rule may in effect expand federal jurisdiction over all wet areas of a state. This is despite Congress’s limiting of the EPA’s and the Army Corps of Engineers’ authority under the CWA, as the Supreme Court has consistently recognized,” said a letter led by Senate Western Caucus Chairman John Barrasso (R-Wyo.) and Congressional Western Caucus co-chairs Steve Pearce (R-N.M.) and Cynthia Lummis (R-Wyo.).

In a fast-tracking move, the EPA sent its draft rulemaking proposal to the White House for approval before the scientific study on which the changes are based was peer reviewed.

“If EPA believes that the law should be changed based on new scientific research, we would welcome you sending any proposals to Congress for our consideration. Issuing reports and using them to potentially change a law duly passed by Congress would invite legitimate legal challenges and further erode the public’s confidence in our Constitutional system of checks and balances,” the lawmakers warned.

The senators reminded McCarthy that recently during consideration of the Water Resources Development Act (WRDA), a bipartisan group voted 52 to 44 to reject the EPA’s Clean Water Act Jurisdiction Guidance “which would have also resulted in effectively unlimited jurisdiction over intrastate water bodies.”

“Strong opposition to EPA’s approach is based on the devastating economic impacts that a federal takeover of state waters would have,” they wrote. “Additional regulatory costs associated with changes in jurisdiction and increases in permits will erect bureaucratic barriers to economic growth, negatively impacting farms, small businesses, commercial development, road construction and energy production, to name a few. In addition, expanding federal control over intrastate waters will substantially interfere with the ability of individual landowners to use their property.”

“We urge you to change course and to commit to operating under the limits established by Congress, even if those limits are impermissibly overlooked in the so-called Connectivity Report.”

Today, Senate Environment and Public Works Committee ranking member David Vitter (R-La.), House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Subcommittee on Regulatory Reform, Commercial and Antitrust Law Chairman Spencer Bachus (R-Ala.) wrote the Office of Management and Budget to ask that they put the brakes on the rule.

“The consequences of a rushed ‘waters of the United States’ rulemaking are too important to ignore.  The property rights of millions of Americans are at stake, as many fear their ability to make productive use of their land will become subject to EPA’s regulatory whims.  EPA has already sent a dangerous signal by committing to the Connectivity Report well before the Report’s merits have been decided.  Further, given that the text draft rule would provide EPA with authority over ponds, tributaries, and ditches never before subject to federal regulation, the significance of the Report and its relationship to the rule make EPA’s premature commitment to the Report even more suspect,” they wrote.

To comply with the EPA’s approach, the lawmakers added, would “make a mockery of OMB’s responsibility.”

“We request that OMB and the Office of Information and Regulatory Affairs immediately return the draft rule to EPA so that the Connectivity Report can be properly and fully evaluated and the rulemaking may eventually proceed in a credible manner,” they wrote.

Vitter said moving forward with the rule means “the property rights of millions of Americans would be at stake.”

“In an instant, EPA’s expanded jurisdiction would become a federal takeover of all waters in the U.S. That includes your and your neighbor’s pond in the backyard,” he said. “It is troubling to see EPA avoiding the scientific review process on their Connectivity report while redefining this major issue, especially after all the promises we’ve heard from the Agency about increasing transparency and aspiring to use the best available science.”