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Inhofe Highlights Increasing Concern with EPA Water Overreach
May 10, 2012

Contact: Matt Dempsey (202) 224-9797 Matt_Dempsey@epw.senate.gov

Katie Brown (202) 224-2160 Katie_Brown@epw.senate.gov 

Inhofe Highlights Increasing Concern with EPA Water Overreach  

S. 2245, the Preserve the Waters of the US Act

H.R. 4965, Guidance on Identifying Waters Protected by the Clean Water Act 

Watch Inhofe Senate Floor Remarks

Washington, DC - Senator James Inhofe (R-Okla.), Ranking Member of the Senate Committee on Environment and Public Works, last night spoke on the Senate floor highlighting increasing bipartisan concerns about the overreach of the Water Office at the Environmental Protection Agency (EPA). In the speech, Inhofe said that despite recent Supreme Court rulings that EPA exceeded its authority, news editorials criticizing the EPA for “abuse,” and growing bipartisan Congressional efforts to rein in the agency, EPA officials are saying “Internally, it's same old, same old.”

 

 Highlights from Senator Inhofe’s Floor Remarks 

 

“I rise today to talk again about my ongoing investigation into the overreach at EPA. How bad is it at the EPA? Even the Washington Post is catching on.

 

"On May 3, the Washington Post Editorial Board penned an editorial entitled ‘The EPA is earning a reputation for abuse.’ In this editorial they discussed how the former Region VI Administrator, Al Armendariz’s ‘philosophy of enforcement’ has severely hurt the EPA. While the Washington Post doesn’t agree with me very often, I was pleased to read that they saw that the “crucify” policy Mr. Armendariz purported in his visit to Dish, Texas, clearly showed that he “preferred to exact harsh punishments on an arbitrary number of firms to scare others into cooperating,” and further, the Washington Post editorial board saw this attitude as both unjust and threatening to investors in energy projects.   

“But the Post’s editorial board didn’t see Armendariz as an isolated incident. They also called out EPA’s actions in another recent, high-profile misuse of power that has hurt the agency’s credibility: EPA insisting that an Idaho couple, the Sacketts, stop construction on their home because they violated the Clean Water Act. 

“What’s even more frustrating than EPA’s continued overreach is that this new ‘guidance’ will provide dubious improvement to water quality and will likely hinder real progress on cleaning water. The guidance’s broad reach and legalistic language will inevitably shift the balance of regulatory authority further away from states, which are better equipped to protect waters within their borders. 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.   

“Working with Senator Barrasso, Senator Heller, and Senator Sessions, we introduced S. 2245, the Preserve the Waters of the US Act – a bill that stops EPA from finalizing the guidance and from using guidance to make decisions about the scope of the Clean Water Act or to turn it into a rule. The House has also acted with Chairmen and Ranking Members of the Transportation and Infrastructure and Agriculture committees to introduce the bi-partisan H.R. 4965. I applaud Mr. Mica, Mr. Rahall, Mr. Lucas, Mr. Peterson, and Mr. Gibbs for their actions. These bills do not change or roll back any current protections under the Clean Water Act; they simply stop EPA and the Corps from moving forward and making these unprecedented regulatory changes through a guidance document.  

“EPA needs to withdraw this guidance document immediately.  If they wish to make changes to the Clean Water Act, they 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 and H.R. 4965 will.” 

 

Remarks as Prepared for Delivery 

 

Mr. President, I rise today to talk again about my ongoing investigation into the overreach at EPA. How bad is it at the EPA? Even the Washington Post is catching on.

 

On May 3, the Washington Post Editorial Board penned an editorial entitled “The EPA is earning a reputation for abuse.” In this editorial they discussed how the former Region VI Administrator, Al Armendariz’s “philosophy of enforcement” has severely hurt the EPA. While the Washington Post doesn’t agree with me very often, I was pleased to read that they saw that the “crucify” policy Mr. Armendariz purported in his visit to Dish, Texas, clearly showed that he “preferred to exact harsh punishments on an arbitrary number of firms to scare others into cooperating,” and further, the Washington Post editorial board saw this attitude as both unjust and threatening to investors in energy projects.

 

While Armendariz has resigned, his statements have undermined the legitimacy of EPA’s regulatory authorities. We know that the policy of extracting harsh punishment on arbitrary individuals in order to scare others into cooperating was not just over inflated rhetoric. Mr. Armendariz followed through on his philosophy when he had EPA Region VI pursue a trumped up emergency action against the natural gas company, Range Resources. EPA is not using its powers fairly and shows its enforcement is arbitrary, unreliable, capricious, and unduly severe.

 

But the Post’s editorial board didn’t see Armendariz as an isolated incident. They also called out EPA’s actions in another recent, high-profile misuse of power that has hurt the agency’s credibility: EPA insisting that an Idaho couple, the Sacketts, stop construction on their home because they violated the Clean Water Act.

 

On March 21, the Supreme Court ruled unanimously that EPA had exceeded its authority in pursuing the Sacketts and has ensured that they and other people who find themselves in similar situations can challenge EPA's assertion of whether or not their property contains jurisdictional wetlands, without submitting to the permitting process. 

 

A mere two days later EPA was again called out for overreaching their authority on water issues. Then on March 23, the U.S. District Court ruled that EPA overreached in revoking a permit to Arch Coal after the Army Corps of Engineers had already granted it.  In quite a blow to 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."

 

Yet, in the midst of scathing rebukes from the press and the courts, EPA is still acting as if everything is the same as it was before these cases and actively pursuing more regulatory power by attempting to vastly increase the scope of the Clean Water Act’s reach.

 

In fact when discussing the results of the Sackett case at American Law Institute-American Bar Association event on May 3rd,  Mark Pollins, director of EPA's water enforcement division, said “Internally, it's same old, same old.” I plan to send a letter to Administrator Jackson, trying to find out how– in the face of a 9 to nothing Supreme Court Decision – for the Agency nothing has changed.

 

And if EPA is able to finalize their new Clean Water Act jurisdictional guidance it will have given itself a whole new set of excuses for pushing the boundaries of the Clean Water Act as far as possible. This continued overreach is why we now have bicameral, bipartisan legislation introduced to stop this current guidance over reach.

 

Let’s take a moment and go back in time to where this all started.

 

Most of us remember back to last Congress when Senator Feingold and Congressman Oberstar were pushing the “Clean Water Restoration Act” which removed the word “navigable” from the Clean Water Act.  By making that simple change, the bill would have allowed EPA and the Army Corps of Engineers to regulate virtually all land in the United States under the Clean Water Act. To give you an impression of how unpopular the Clean Water Restoration Act was, it was defeated in a Democrat-controlled Congress, and both of 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 undertake a Clean Water Act rulemaking, EPA would have had to follow a transparent process and engage in a public comment period, as required by the Administrative Procedure Act.  Given how unpopular their proposal has been, going though with a rulemaking would make it much more difficult to obtain the expanded federal control they are clearly pursuing. 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 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. 

 

What’s even more frustrating than EPA’s continued overreach is that this new “guidance” will provide dubious improvement to water quality, and will likely hinder real progress on cleaning water. The guidance’s broad reach and legalistic language will inevitably shift the balance of regulatory authority further away from states, which are better equipped to protect waters within their borders. 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. 

 

Congress has been explicitly clear with EPA that this new guidance is unacceptable. Last July, I lead a letter with Senator Roberts, Ranking Member of the Senate Agriculture Committee, and 39 of our colleagues to Administrator Jackson where we raised our concerns that this document went far further than mere guidance. EPA and the Corps greatly expand what can be considered jurisdictional waters through a slew of new and expanded definitions and through changes to applications of jurisdictional tests.

 

Administrator Jackson herself has said that this guidance will increase the Clean Water Act’s scope. In the economic analysis that accompanied the guidance, it stated that as few as 2% and as many as 17% percent of non-jurisdictional determinations under current guidance would be considered jurisdictional using the expanded tests under the new guidance.  However, this analysis was only for the Army Corps making dredge and fill permit decisions when compared to current practice. The guidance will apply to the entire clean water Act including: the National Pollution Discharge Elimination System permits, the Oil Pollution Act and Spill Prevention Control and Countermeasure plans, water quality standards, and even state water quality certifications. Because most states have delegated authority under the Clean Water Act, this change in guidance will also result in a change in the responsibilities of states in executing their responsibilities under the Clean Water Act and a change in how individual citizens are governed by the law.

 

The finalized guidance document is currently at OMB for formal interagency review before it is finalized. We do not know what changes have been made, but based on a draft that was leaked to the press, it does not appear that the document is substantially different from the proposed guidance document they put out for public comment last May. This is the last step before this expansive document starts being used throughout the country, and that is why I hope all my colleagues here in the Senate, on both sides of the aisle, will join me in trying to stop it.

 

Working with Senator Barrasso, Senator Heller, and Senator Sessions,  we introduced S. 2245, the Preserve the Waters of the US Act – a bill that stops EPA from finalizing the guidance and from using the guidance to make decisions about the scope of the Clean Water Act or to turn it into a rule. The House has also acted with Chairmen and Ranking Members of the Transportation and Infrastructure and Agriculture committees introduced the bi-partisan, H.R. 4965. I applaud Mr. Mica, Mr. Rahall, Mr. Lucas, Mr. Peterson and Mr. Gibbs for their actions. These bills do not change or roll back any current protections under the Clean Water Act; they simply stop EPA and the Corps from moving forward and making these unprecedented regulatory changes through a guidance document.

 

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 and H.R. 4965 will. 

 

I yield the floor.

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