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EPA's Water Guidance Overreach Cometh...
April 11, 2012

Posted by Katie Brown 

EPA's Water Guidance Overreach Cometh...

Link to the Barrasso/Inhofe Preserve the Waters of the US Act  

Given the Obama administration's track record of announcing agency actions on days when they hope no one will notice, we are preparing for the possibility that as early as this Friday, EPA will announce that it has finalized its Clean Water Act (CWA) jurisdictional guidance - a document put forth by the EPA and the Army Corps of Engineers that would set the stage for the federal government to increase vastly its authority over virtually every square inch of land where water falls in the United States, no matter how small or insignificant the water features might be.  This so called "guidance" will fundamentally change peoples' rights and responsibilities under the Clean Water Act, and not for the better.

If anything could keep this announcement from happening this week, it would be that EPA and the Corps are too busy at the moment scrambling to avert a PR disaster after the courts recently called EPA out twice for overreaching its authority on water issues.  On March 21, the Supreme Court ruled unanimously that EPA had exceeded its authority when the agency told an Idaho couple they could not challenge EPA's assertion that they had filled in a wetland without first admitting they had filled in a wetland and submitting to the permitting process.  Then on March 23, the U.S. District Court ruled that EPA overreached in revoking a permit to the St. Louis-based Arch Coal after the Army Corps of Engineers had already granted it.  In quite a blow the agency, the Judge said EPA's claim "that section 404(c) grants it plenary authority to unilaterally modify or revoke a permit that has been duly issued by the Corps" is a "stunning power for an agency to arrogate to itself when there is absolutely no mention of it in the statute."

Nevertheless, even as EPA grapples with the courts reining it in twice in a matter of days, we wouldn't be surprised if, when all is quiet on the hill, the agency goes through with one of its biggest overreach attempts of all.

In anticipation of this guidance, a long-standing bipartisan chorus from Congress has sent a steady drumbeat of letters to the Obama administration requesting that the guidance document be abandoned; and prior to the Easter-Passover break, Senators Barrasso and Inhofe introduced a bill (the Preserve the Waters of the US act, S. 2245) that would prevent these agencies from finalizing or using the guidance.    

EPA Power Grab 

EPA's plan, as laid out in this guidance document, will provide dubious improvement to waters, and likely will hinder real progress on clean water. The guidance inserts new definitions, elevates marginal waters, and includes a bevy of new jurisdictional tests that will inevitably shift the balance of regulatory authority further away from states, which are better equipped to protect waters within their borders. It will apply to all jurisdictional decisions under the CWA, not just those involved in Supreme Court cases. Because most states have delegated authority under many CWA programs, this alteration in guidance will result in a dramatic change to the responsibilities of states in executing their CWA duties. In doing this, EPA is continuing to erode the state-federal partnership set up in the CWA, which specifies that protection of waters is the primary responsibility of states because they have the experience and competence to do it effectively.  Not only does it take the authority away from states, it also burdens states with additional unfunded mandates, at a time when state and local budgets are already stretched.

Giving the federal government control over nearly all water features will not lead to cleaner water; it will, however, lead to tremendous uncertainty, confusion and economic pain for farmers, energy developers, small business, and state governments by saddling them with more layers of expensive, onerous and unnecessary federal regulations.  It is yet another Obama administration policy that will be all pain for no environmental gain. 

What they couldn't do through legislation...

Democrats already tried this federal takeover of our nation's waters with the Clean Water Restoration Act (CWRA), a bill that removed the word 'navigable' from the Clean Water Act.  By making that simple change, the bill would have required that a federal permit be obtained for just about any activity that could affect virtually any body of water: that would mean if you're a farmer who wants to fill in a ditch, you've impounded water, so your water is now "waters of the United States."  If you're a hunter, you had better not be near any body of water, including an intermittent stream, because your bullets could potentially pollute some part of the aquatic system.

To give an impression of how unpopular the CWRA was, it was overwhelmingly rejected by the American people; it was defeated in a Democrat-controlled Congress; and both the bill's sponsors lost their reelection campaigns.

Normally, when the Obama administration can't achieve what they want through legislation, they just do it through regulations.  But EPA didn't jump directly to regulations in this case.  That's because in order to amend the Clean Water Act through a rulemaking, EPA would have to follow a transparent process and engage in a public comment period, as required by the Administrative Procedure Act.  But given how unpopular this proposal has been, going though with a rulemaking requiring them to consider comments would make it much more difficult to obtain the federal control they are clearly pursuing.

Thus far, the Obama administration has shown little propensity for taking into account how these policies will affect the livelihoods of Americans.  When the draft guidance was placed in the Federal Register, they received well over 230,000 comments; yet the final draft guidance leaked to the press on March 7, 2012 appears to be substantively identical to the draft guidance, showing that the agencies completely disregarded the hundreds of thousands of concerns that were voiced.

EPA continues to claim that this document is simply "clarifying" guidance, not a rulemaking, so no one needs to panic.  But by changing agency practice in this informal and "non-regulatory" way, they virtually ensure that they will be able to formalize this agenda easily through a future rulemaking.

So what they couldn't achieve through legislation, or, in this case, the proper rulemaking process, they are trying to achieve through guidance. 

Stopping the "biggest bureaucratic power grab in a generation" through the backdoor

EPA needs to withdraw this guidance document immediately.  If it wishes to make changes to the Clean Water Act it must go through the complete and proper rulemaking process under the Administrative Procedures Act, which requires that comments from stakeholders are taken into account.  If EPA will not cease this bureaucratic overreach, hopefully the Preserve the Waters of the US bill will. 


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