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2013 Year End Review: Holding EPA Accountable for Clean Water Act Abuse
December 16, 2013

During 2013, the U.S. Senate Environment and Public Works Committee Republicans, and ranking member U.S. Sen. David Vitter (R-La.), challenged the Environmental Protection Agency (EPA) on several items related to the Agency's implementation of the Clean Water Act (CWA).

Below are a few of the key actions Vitter took this year:

"Waters of the United States" Rulemaking

EPA is currently engaged in a CWA rulemaking, which would significantly expand federal authority over streams, ditches, ponds, and other local waterbodies located on private property throughout the U.S.  The new rule would give the federal government outright permitting authority over virtually any wet area in the country and would provide a new tool for environmental groups to sue private property owners.

EPA has rushed the rulemaking using a controversial scientific report to support their would-be drastically expanded authority.  Sen. Vitter has questioned this tactic and requested an independent Science Advisory Board complete its review of the controversial report, before the Agency proceeds with the rulemaking can proceed in a credible manner.

-          April 23: Sen. Vitter and Sen. Barrasso express concerns that EPA is drastically expanding scope of CWA

-          September 18: Sen. Vitter emphasizes concerns remain after EPA rulemaking announcement

-          October 2: EPW Republicans demand that Agency formally announce withdrawal of controversial CWA guidance

-          November 15: Sen. Vitter and Reps. Goodlatte and Bachus call for Office of Management and Budget to return the draft CWA rule to EPA

 

EPA's Troubling View of the Agency's CWA Section 404 Authority

Section 404 of the CWA authorizes the Army Corps of Engineers to oversee and issue permits for the statute's dredge and fill program.  But EPA is now attempting to effectively take away the Corps' permitting authority, at the cost of jobs and economic progress throughout the country. 

According to EPA, the Agency has the authority to veto a permit even before an applicant has submitted a permit application, as well as the authority to revoke a permit years after it has been issued.  EPA's supposed preemptive and retroactive veto authority violate the terms of the CWA, as well as fundamental due process principles, and Sen. Vitter has repeatedly criticized the EPA for creating so much uncertainty for American businesses.

-          February 20: Sen. Vitter and Sen. Roger Wicker request EPA to explain Agency's actions in threatening to preemptively veto the Pebble Mine project in Alaska

-          April 29: Sen. Vitter demands that EPA stop playing dangerous, hypothetical games to determine new project approval

-          June 11: EPW Republicans ask EPA Office of Water Nominee Ken Kopocis to clarify Agency's inadequate responses to preemptive veto inquiries

-          July 17: Sen. Vitter blasts EPA's false claim in response to June 11 Pebble Mine inquiry

-          August 29: Sen. Vitter and Sen. Joe Manchin request information relating to EPA's decision to retroactively veto CWA permit for Spruce Mine in West Virginia

-          September 16: Sen. Vitter calls out EPA for chasing mining investment and jobs out of U.S.

-          November 14: Sen. Vitter and Sen. Manchin react to coal company's challenge against EPA's supposed retroactive veto authority

 

EPA's Illegal Release of Private Personal Data to Environmental Groups

EPA has strong track record of avoiding public scrutiny, transparency, and Congressional oversight. However, earlier this year, EPA illegally released personal and confidential business information related to Concentrated Animal Feeding Operations (CAFOs) to three environmental groups.  In doing so, EPA demonstrated a troubling disregard for the privacy interests of both private citizens and competitive businesses.

On April 4th, Sen. Vitter along with seven other Senators sent a letter to EPA expressing their concerns over the matter and sought an explanation for EPA's actions and the circumstances behind this breach of public trust.

 

EPA's Continued Transgression Against CAFOs

Following EPA's failure to effectively protect personal and confidential business information pertaining to CAFOs, Sen. Vitter learned that an EPA Region 9 employee planned to speak on a panel, moderated by the Natural Resources Defense Council, an environmentalist group, intended to assist third parties in obtaining hard-to-get government information that could potentially be used in citizen suit litigation against farmers, ranchers, and other natural resource users.

On June 21st, Sen. Vitter, along with six other Senators, sent a letter to EPA requesting that the Agency refrain from participating in the panel in light of the Agency's recent and inexcusable failure to effectively protect private data relating to CAFOs.  The Agency subsequently accommodated Sen. Vitter's request.

 

EPA Stormwater Regulations

For the past few years, EPA has been engaged in an effort to draft a new rule that would require individuals and small businesses to comply with costly new regulations limiting stormwater flow from developed or redeveloped property.  Yet EPA has failed to provide Congress with a required report on the necessity of new stormwater discharge regulations, and its outreach to small businesses that would be affected by the rule has been inadequate.

On May 20, EPW Republicans sent EPA Acting Assistant Administrator Stoner a letter demanding that EPA suspend the stormwater rulemaking until the Agency complies with their reporting requirements and reengages with the small business community.  EPA later refrained from proposing a new stormwater rule in June, as the Agency had previously promised to do.

 

Iowa League of Cities

EPA has a history of using guidance documents, and in one particular case, letters, to affect policy change.  Most recently, EPA attempted to change wastewater treatment processes rules using two letters sent by EPA to Sen. Chuck Grassley (R-Iowa).  In Iowa League of Cities v. EPA, the Eighth Circuit held that both letters constituted new legislative rules undertaken outside of the notice and comment procedures required by the Administrative Procedure Act. Both of EPA's falsely created rules were invalidated.  Shortly after, EPA signaled its intention to limit this decision only to the Eighth Circuit.

On June 18, Sen. Vitter and Sen. Grassley sent a letter to Acting Administrator Bob Perciasepe calling on EPA to acknowledge its error in creating "regulations by letter" and to take greater care to abide by the APA's regulatory framework.


EPA's Use of a Stated Preference Survey to Inflate Benefits Calculations

In April 2011, EPA issued a proposed rule under the CWA to set new standards for cooling water intake structures at existing power facilities.  After determining that its original cost-benefit analysis, using conventional methods, was "incomplete," EPA decided to recalculate the benefits using the highly controversial stated preference survey.  The difference in the results was dramatic.  EPA's use of a stated preference survey in this instance appeared to be an attempt to deliberately inflate the benefits calculations in order to justify an extremely costly regulation.

On July 22, Sen. Vitter, along with Jim Inhofe (R-Okla.), Mike Crapo (R-Idaho), and John Boozman (R-Ark.), sent a letter to Acting Assistant Administrator Nancy Stoner requesting that EPA refrain from using this survey as a basis for the final rule.  The Senators also requested that the Agency stick to well-established methods to determine the costs and benefits of the regulation.

 

EPA Enforcement Methods: EPA's Armed Raid of Chicken, Alaska

In August, EPA and other state and federal agencies conducted an aggressive armed raid against small operation miners in Chicken, Alaska to investigate alleged CWA violations.  The investigators even went so far as to wear full body armor and carry guns.

On September 11, in an effort to promote government transparency and hold federal agencies accountable for their actions, Sen. Vitter partnered with Sen. Barrasso and sent a letter to EPA requesting information surrounding the circumstances of the Agency's heavy-handed actions. 

On October 22, Sen. Vitter sent a follow-up letter to the Department of Justice (DOJ) requesting that it examine whether EPA law enforcement agents are conducting criminal investigations in accordance with guidelines approved by the Attorney General.  There is growing concern that EPA is more interested in shutting down natural resource industries than it is in faithfully executing federal environmental statutes.

 

Monitoring Hypoxia in the Gulf of Mexico

One issue that continues to affect the Gulf of Mexico is the hypoxic "dead zone" zone along the Texas and Louisiana coast.  Sen. Vitter has been monitoring both the phenomenon's effects, as well as potential solutions to appropriately mitigate the problem.

On November 1, in response to EPA's June listing of three Louisiana coastal water segments on Louisiana's Clean Water Act 2012 Section 303(d) List as impaired, Vitter sent a letter to Acting Assistant Administrator Stoner requesting that EPA better support its listing decision and refrain from mandating the development of a counterproductive Total Maximum Daily Load plan.  In an effort to find real, workable solutions to the problem, Vitter asked that EPA work with Louisiana Department of Environmental Quality, other Louisiana officials, and other Mississippi-Atchafalaya River Basin States in their efforts to achieve prudent nutrient reduction strategies.

 

EPA Abuse of Clean Water Act on Poultry Farm Struck Down by Court

Sen. Vitter has worked to ensure that EPA is held accountable for its implementation and enforcement of the CWA. This includes EPA's standards for the issuing of compliance orders.

On November 5th, Sen. Vitter sent a letter to EPA expressing his support for the decision by the U.S. District Court for the Northern District of West Virginia which held that EPA's attempt to regulate and excessively fine a fully compliant West Virginia poultry farm was unlawful.  According to the court, EPA had no business attempting to subject agricultural stormwater runoff to certain permitting requirements.  In the letter Vitter insisted that it should not require taxing litigation to prevent unnecessary bureaucratic interference where it is clearly beyond the scope of federal regulatory authority.

 

EPW Republicans will be sending out additional documents recapping the committee's work during 2013 on various issues. Stay tuned for more in the coming days and weeks.

 

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