EPW Republicans: EPA’s Failure to be Forthright on New Clean Water Act Rule is Troubling
Senators demand transparency, public withdrawal of controversial draft CWA guidance before EPA moves forward with efforts to expand water jurisdiction and regulatory agenda
October 2, 2013

Today, U.S. Sen. David Vitter (R-La.), top Republican on the Environment and Public Works Committee, along with U.S. Sens. John Barrasso (R-Wyo.), Mike Crapo (R-Idaho), Deb Fischer (R-Neb.), John Boozman (R-Ark.), and James Inhofe (R-Okla.) sent a letter to Gina McCarthy, Administrator of the U.S. Environmental Protection Agency (EPA), asking the Agency to publically announce they have withdrawn a 2011 draft rule defining the "waters of the U.S." under the Clean Water Act (CWA), and to direct EPA field offices and the Army Corps of Engineers (Corps) not to utilize the guidance document in an agency action.

"Given the significant criticism generated by the draft guidance's expansive interpretation of CWA jurisdiction, EPA should have completely and unconditionally abandoned the draft in any and all circumstances," wrote the Senators. "But because EPA chose to be less than forthright, the agency's rulemaking efforts may now be plagued by uncertainty and distrust on interim jurisdictional questions."

"The EPA has perpetually taken steps to expand its own jurisdiction under the Clean Water Act, the now withdrawn guidance document and new rule are symptoms of an agency unceasingly trying to broaden its reach and frustrate commerce," said Sen. David Vitter (R-La.). "We're demanding a whole lot more transparency and to unequivocally withdraw the controversial draft guidance."

"A bipartisan majority of the Senate voted for my amendment to reject EPA's attempt to seize all non-navigable state waters through ‘guidance.' We cannot afford to allow Washington bureaucrats to force farmers, ranchers and small business owners to pay for costly permits based on proposed ‘guidance," said Sen. John Barrasso (R-Wyo.). "The EPA should repeal this unprecedented power grab once and for all. Congress never intended for the federal government to control non-navigable state waters, and it is high time EPA recognized that fact."

EPA created ambiguity regarding the status of the agency's 2011 draft guidance on CWA jurisdiction by failing to formally and unequivocally withdraw the guidance. The draft guidance's expansive interpretation of CWA jurisdiction generated significant criticism, but EPA did not unconditionally discontinue use of the draft. On September 17, 2013, an official EPA blog post indicated that the Agency and Corps would proceed with rulemaking. On the same date, EPA informed congressional staff that the draft guidance would be withdrawn, but refrained from making a public announcement.

Text of today's letter is below. Click here for the PDF version.

 

October 2, 2013

The Honorable Gina McCarthy
Administrator
U.S. Environmental Protection Agency
Ariel Rios Building
1200 Pennsylvania Ave, NW
Washington, DC 20460

Dear Administrator McCarthy:

We write in response to the Environmental Protection Agency's (EPA) announcement last month that a draft rule on Clean Water Act (CWA) jurisdiction has been sent to the Office of Management and Budget (OMB) for interagency review. We are concerned that EPA created ambiguity regarding the status of the agency's 2011 draft guidance on CWA jurisdiction. In order to confirm EPA's quiet revelation that the draft guidance has been withdrawn, we request that EPA immediately and publicly instruct agency and Army Corps of Engineers (Corps) personnel and field staff that the draft guidance may not be used or relied on in making CWA jurisdictional determinations.

This request stems from EPA's September 17, 2013 blog post indicating that the agency and the Corps would proceed with rulemaking for CWA jurisdiction.[1] In conjunction with this announcement, EPA informed congressional staff that it would "withdraw[] the draft guidance previously sent to OMB and concentrat[e] on the rule per stakeholder request."[2] News reports likewise indicated that the draft guidance would be withdrawn.[3]

Yet EPA conspicuously refrained from explaining the draft guidance's status in correspondence with the public at large. The apparent withdrawal of the draft guidance was not mentioned in the September 17 blog post, nor was it referenced in contemporaneous email correspondence to stakeholder groups.[4] To our knowledge, EPA has not provided a notice or statement for public and agency dissemination which confirms the draft guidance's termination. Further, EPA's claim that it is "withdrawing the draft guidance" leads to questions on what exactly the draft's "withdrawal" means and when precisely the "withdrawal" takes effect.[5]

EPA's lack of transparency regarding the draft guidance's status is troubling. Given the significant criticism generated by the draft guidance's expansive interpretation of CWA jurisdiction, EPA should have completely and unconditionally abandoned the draft in any and all circumstances. But because EPA chose to be less than forthright, the agency's rulemaking efforts may now be plagued by uncertainty and distrust on interim jurisdictional questions.

We are likewise unconvinced that the draft guidance's "withdrawal" will result in a meaningful practical change. To illustrate, we were disturbed to learn that Corps field staff have apparently relied on the draft guidance in making recent CWA jurisdictional determinations, despite the fact that the draft was never finalized. It is disconcerting to hear of the Corps' eagerness to use the draft guidance's improper "aggregation" approach in order to assert jurisdiction over one particular farmer's drainage ditches. EPA's vague announcement last month leaves open the possibility that federal officials may for the foreseeable future look to the draft guidance and its dubious regulatory agenda when making jurisdictional determinations.

Accordingly, we request that EPA formally announce to the public and to EPA and Corps field personnel no later than October 9, 2013 that the draft guidance is withdrawn and that the draft may not be used or otherwise relied on when making CWA jurisdictional determinations. We also request that you provide Committee staff with copies of such correspondence. As there is no legitimate reason for EPA's vague approach thus far, the agency's failure to accommodate our requests will serve as a confirmation that EPA and the Corps intend to improperly rely on the draft guidance when making jurisdictional determinations during the rulemaking period.


Sincerely,

David Vitter
Ranking Member
Environment and Public Works

John Barrasso, M.D.
United States Senate

Mike Crapo
United States Senate

Deb Fischer
United States Senate

John Boozman
United States Senate

James Inhofe
United States Senate


CC:

The Honorable Jo-Ellen Darcy
Assistant Secretary of the Army (Civil Works)
108 Army Pentagon
Room 3E446
Washington, DC 20310-0108

 

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